Banking Code of the Republic of Belarus
October 25, 2000 No. 441-Z
[Amended as of July 13, 2012]
Adopted by the Chamber of
Representatives on 3 October 2000
Approved by the Council of the Republic on
12 October 2000
General Part
Section I
General provisions
CHAPTER 1
BASIC PROVISIONS
Article 1. Relations regulated by banking legislation
Relations
regulated by banking legislation constitute a system of economic social
relations to mobilize and use temporarily disengaged monetary means. Banking
legislation determines principles of banking activity and legal status of
subjects of bank legal relationships, regulates relations between them, and
sets forth procedures for the establishment, functioning, reorganization, and
liquidation of banks and non-bank credit and financial organizations.
Property
relations as well as non-property relations associated therewith which arise
when carrying out banking activity are also regulated by civil legislation,
having regard to the specific provisions stipulated by this Code.
Relations
connected with the use of securities, budgetary and foreign currency means as
well as other relations connected with the activity of banks and non-bank
credit and financial organizations are regulated by special legislation unless
otherwise stipulated by this Code.
Article 2. Banking legislation of the Republic of Belarus
Banking
legislation of the Republic of Belarus is a system of normative legal acts that
regulate relations arising when carrying out banking activity and establish the
rights, duties and liability of subjects and participants of bank legal
relationships.
Banking
legislation acts include:
legislative
acts of the Republic of Belarus;
administrative
orders of the President of the Republic of Belarus of a normative nature;
resolutions
of the Government of the Republic of Belarus;
normative
legal acts of the National Bank of the Republic of Belarus (hereinafter – the
“National Bank”); and
normative
legal acts adopted by the National Bank jointly with the Government of the Republic
of Belarus or with republican bodies of state administration on the basis of
and in compliance with this Code and other legislative acts of the Republic of
Belarus.
Article 3. Banking legislation and norms of international law
The Republic
of Belarus recognizes the priority of generally recognized principles of
international law and ensures the compliance of banking legislation therewith.
Norms of
banking legislation contained in the treaties of the Republic of Belarus, entered
into force, are an integral part of the banking legislation which is in force
in the territory of the Republic of Belarus. They are to be applied directly,
unless the treaty provides that a national normative legal act is to be adopted
(issued) for the application of such norms, and have the force of a legal act
whereby the consent of the Republic of Belarus to be bound by the treaty have
been expressed.
Article 4. Fundamentals of monetary and credit policy of the Republic
of Belarus
Monetary and
credit policy of the Republic of Belarus is an integral part of the single
state economic policy.
Fundamental
Monetary and Credit Policy Guidelines of the Republic of Belarus that are
annually approved by the President of the Republic of Belarus on proposal of
the National Bank and the Government of the Republic of Belarus constitute the
legal ground of monetary and credit policy of the Republic of Belarus.
Fundamental
Monetary and Credit Policy Guidelines of the Republic of Belarus contain key
parameters of monetary sector development, determine objectives, tasks, and
priorities of state monetary and credit policy, and provide for a set of
measures and mechanisms for their regulation and control which ensure their
implementation.
Article 5. Financial and credit system of the Republic of Belarus
The banking
system of the Republic of Belarus is an integral part of the financial and
credit system of the Republic of Belarus. The
banking system of the Republic of Belarus is a two-tier system which includes
the National Bank and other banks.
The financial
and credit system of the Republic of Belarus includes, along with banks,
non-bank credit and financial organizations.
Article 6. Subjects and participants of bank legal relationships
Subjects of
bank legal relationship are the National Bank, banks, and non-bank credit and
financial organizations.
The Republic
of Belarus, its administrative-territorial units, including in the name of
state bodies, as well as natural persons, individual entrepreneurs and legal
persons may be participants of bank legal relationships unless otherwise
stipulated by this Code.
The rules of
this Code applied to natural persons apply also to individual entrepreneurs,
unless otherwise stipulated by this Code.
Article 7. The National Bank
The National
Bank is the central bank and a state body of the Republic of Belarus. The
National Bank regulates credit relations and money circulation, determines
settlement procedures. The National
Bank has the exclusive right to emit money and exercise other functions
stipulated by this Code and other legislative acts of the Republic of Belarus.
Article 8. Bank
A bank is a
legal person that has the exclusive right to perform the following banking
operations, combined:
to accept
monetary means of natural and/or legal persons in accounts and/or deposits;
to place
attracted monetary means specified in indent two of this part in the own name
and at the own costs on the conditions of repayment,
interest payment, and maturity;
to open and operate
bank accounts for natural and/or legal persons.
A bank is
entitled to perform other banking operations and engage in other kinds of
activities stipulated in Article 14 of this Code.
Article 9. Non-bank credit and financial organization
A non-bank credit
and financial organization is a legal person which has the right to perform
certain banking operations and activities stipulated in Article 14 of this
Code, except for the combined performance of the following banking operations:
to accept
monetary means of natural persons in accounts and/or deposits;
to place
attracted monetary means specified in indent two of this part in the own name
and at the own costs on the conditions of repayment,
interest payment, and maturity;
to open and
to operate bank accounts for natural and/or legal persons.
Permissible
combinations of banking operations which may be performed by non-bank credit
and financial organizations are prescribed by the National Bank.
Dispositions
stipulated for banks apply when non-bank credit and financial organizations are
created, reorganized, operated and liquidated, unless otherwise established by
this Code and other banking legislation.
Article 10. Objects of Bank Legal Relationships
The objects of
bank legal relationship are money (foreign currency), securities, precious
metals and precious stones and other valuables.
Article 11. Currency of Monetary Obligations
Monetary
obligations in the territory of the Republic of Belarus must be expressed in
the official monetary unit of the Republic of Belarus (Belarusian ruble).
A monetary
obligation may provide that it is to be fulfilled in the official monetary unit
of the Republic of Belarus in the amount equivalent to a certain sum in a
foreign currency or in conventional (calculated) monetary units. In
that case the amount payable in the official monetary unit of the Republic of
Belarus is determined at the official exchange rate of the relevant currency or
of conventional (calculated) monetary units on the date of payment unless a
different exchange rate or a different date for determining the exchange rate
is stipulated by the legislation of the Republic of Belarus or by agreement
between the parties.
The use of
foreign currency and also securities and payment instructions in foreign
currency in monetary obligations in the territory of the Republic of Belarus is
allowed in cases, in the order and on conditions determined by legislation of
the Republic of Belarus.
Chapter 2
Banking Activity
Article 12. Banking activity
Banking
activity is a combination of banking operations performed by banks and non-bank
credit and financial organizations aimed at obtaining profit.
Article 13. Principles of banking activity
The
fundamental principles of banking activity are:
obligatory
obtainment by banks and non-bank credit and financial organizations of a
special permit (license) for carrying out banking operations (hereinafter –
license to carry out banking activities);
independence
of banks and non-bank credit and financial organizations in their activities,
non-interference of state authorities in their functions, except for the cases
stipulated by legislative acts of the Republic of Belarus;
delimitation
of responsibilities between banks, non-bank credit and financial organizations
and the state;
obligatory
compliance with economic standards prescribed by the National Bank for the
purpose of maintaining stability and sustainability of the banking system of
the Republic of Belarus;
ensuring the
right of natural and legal persons to select a bank or a non-bank credit and
financial organization;
ensuring bank
secrecy of transactions, accounts, and deposits of customers; and
ensuring the
repayment of monetary means to depositors.
Article 14. Banking operations. Other activities performed by banks
and non-bank credit and financial organizations
Banking
operations are:
attracting
monetary means of natural persons in accounts and/or deposits;
placement of
attracted monetary means specified in indent two of this part in the own name
and at the own costs on the conditions of repayment,
interest payment, and maturity;
opening and
operating accounts of natural and/or legal persons;
opening and
operating bullion accounts;
settlement and/or
cash services to natural and legal persons, including correspondent banks;
currency
exchange transactions;
sale
of precious metals and/or precious stones in the cases stipulated by the
National Bank;
acceptance
and allocation of precious metals and/or precious stones in deposits for natural
and/or legal bodies;
issuing bank
guarantees;
trust
management of a fund of bank management on the basis of a contract of trust
management of bank management fund;
trust management
of monetary means under a contract of trust management of monetary means;
collection of
cash monetary means, payment instructions, precious metals and precious stones
and other valuables;
issuance
(emission) of bank payment cards;
issuance
(emission) of electronic money;
issuance of
securities confirming acceptance of monetary means in deposits and placement
thereof in the accounts;
financing
against monetary claim assignment (factoring);
providing
natural and legal persons with special premises or strongboxes located therein
for bank safekeeping of documents and valuables (monetary means, securities,
precious metals and precious stones, etc.);
carriage of
cash monetary means, payment instructions, precious metals and precious stones
and other valuables between banks and non-bank credit and financial
organizations, their separate and structural divisions, and delivery of such
valuables to customers of banks and non-bank credit and financial
organizations.
Rules of and
procedures for banking operations are established by the National Bank.
Specific
regulations for carrying out banking operations involving precious metals and
precious stones are stipulated by special legislation.
In addition
to banking operations referred to in part one of this Article, banks and
non-bank credit and financial organizations are entitled, in accordance with
legislation of the Republic of Belarus, to perform:
provision of
suretyship for third persons which stipulates the fulfillment of obligations in
a monetary form;
trust management
of precious metals and/or precious stones;
operations
(transactions) with precious metals and/or precious stones;
leasing;
counseling
and information services;
issuance
(emission), sale, purchase of securities and other operations with securities;
offset of
mutual monetary and other financial claims and obligations and determination of
net positions (clearing);
operations in
the Republic of Belarus and outside its limits with commemorative banknotes,
commemorative and bullion (investment) coins which are legal means of payment
of the Republic of Belarus, at a price not lower than the nominal;
other
activities provided by the legislation of the Republic of Belarus, carried out
for own needs and/or necessary to ensure the carrying out of banking operations,
with the exception of carrying out the insurance business as insurers.
Article 15. Types of banking operations
Banking
operations may be active, passive, and intermediary.
Active
banking operations are deemed to be operations aimed at providing monetary
means, precious metals and/or precious stones by banks and non-bank credit and financial organizations.
Passive
banking operations are deemed to be operations aimed at attracting monetary
means, precious metals and/or precious stones by banks and non-bank credit and
financial organizations.
Intermediary
banking operations are deemed to be operations facilitating banking activities
of banks and non-bank credit and financial organizations.
Article 16. Specific features of determination of time limits in
banking activity
A time-limit
in banking activity is determined by a calendar date or by the expiration of a
time period which is calculated in years, months, weeks, and calendar, working or
banking days, hours. The time-limit may also be determined
by the indication to an event that will inevitably occur.
A time-limit
in one banking day means a part of the working day set by the bank for
performing certain actions.
The
time-limit calculated in banking days does not include days which, in
accordance with legislation of the Republic of Belarus or standard banking
practice, are not working days. If the last
day of the time-limit is a non-working day, the next working day shall be
deemed the day of the expiration of the time-limit.
If an action
is to be performed within a time-limit calculated in banking days, such action
must be performed before the expiration of the last banking day of the
time-limit.
If payment
instructions are delivered to the bank after the expiration of the time set by
the bank for the execution of the said payment instructions, such payment
instructions are deemed to be delivered on the next banking day.
Article 17. Specific feature for determination of limitation periods when
carrying out banking activity
The
limitation period for the claims of banks and non-bank credit and financial
organizations to borrowers due to non-fulfillment (undue fulfillment) of terms
and conditions of credit contracts is five years.
The limitation
period does not cover depositors’ claims to a bank or a non-bank credit and
financial organization for the repayment of deposits.
Article 18. State regulation of banking activities
The
state regulation of banking activity is carried out by the National Bank
through:
state
registration of banks and non-bank credit and financial organizations;
licensing of
banking activities;
establishing
bans and restrictions for banks and non-bank credit and financial
organizations;
control
over compliance of banks and non-bank credit and financial organizations with
banking legislation;
bank
supervision;
application
of measures of supervisory reaction established by this Code;
adoption
(issue) of normative legal acts;
exercising
of other functions in accordance with the legislative acts of the Republic of
Belarus.
Chapter 3
Relationship between Subjects and Participants of Bank Legal Relationship
Article 19. Relationships between banks, non-bank credit and financial
organizations and state
Banks and
non-bank credit and financial organizations are not liable for obligations of
the state. The state is not liable for
obligations of banks and non-bank credit and financial organizations, except
for the cases where the state has assumed such obligations or unless otherwise
stipulated by legislation of the Republic of Belarus.
Banks and
non-bank credit and financial organizations are independent in their
activities. The state, its bodies, and officials
may interfere in the activities of banks and non-bank credit and financial organizations
only within the limits established by the Constitution of the Republic of
Belarus and legislative acts of the Republic of Belarus adopted in compliance
with the Constitution.
Control over
the performance of cash operations by customers, as well as functions of a
foreign currency control agent may be imposed on banks and non-bank credit and
financial organizations, in accordance with legislative acts of the Republic of
Belarus.
It is not
allowed to impose on banks and non-bank credit and financial organizations,
unless otherwise stipulated by the President of the Republic of Belarus,
functions of control over:
performance
of licensed activities by customers;
timeliness
and adequacy of payments by customers of taxes, dues (duties) and other payments
into the budget, state non-budgetary funds, and also of insurance fees;
observance by
customers of time-limits for payment of wages/salaries and rates thereof; and
observance by
customers and other persons of terms and conditions of contracts concluded
between them.
The National
Bank and other state bodies are not entitled to require banks and non-bank
credit and financial organizations to exercise control and other functions
inappropriate for them.
Banks
may perform operations with budgetary means and perform settlements therewith,
and ensure the intended use of budgetary means and means of state non-budgetary
funds allocated for republican and local (regional) programs.
Article 20. Relationships between banks and/or non-bank credit and
financial organizations
Banks and/or
non-bank credit and financial organizations may accept from each other and
allocate with each other means in the form of deposits and credits, effect
settlements via correspondent accounts opened with each other, and perform
other operations specified in licenses to carry out banking activities.
Article 21. Participation of banks and non-bank credit and financial
organizations in associations
Banks and
non-bank credit and financial organizations may establish unions and associations
that are non-profit organizations.
Establishment
and state registration of unions and associations of banks and non-bank credit
and financial organizations are carried out in the order established by
legislation of the Republic of Belarus.
Banks and
non-bank credit and financial organizations may create associations in the form
of financial and industrial groups and other economic groups in the order and
on the conditions determined by legislation on such groups.
Article 22. Relationships of banks and non-bank credit and financial
organizations with customers
Relations of
banks and non-bank credit and financial organizations with customers are based
on banking legislation and contracts concluded.
Banks and
non-bank credit and financial organizations determine independently the terms
and conditions of transactions that do not contradict legislation of the
Republic of Belarus. Unless otherwise stipulated by rules
effective in banks and non-bank credit and financial organizations, contracts
concluded between a bank or non-bank credit and financial organization and a
customer are public contracts or contracts of adhesion.
The National
Bank is entitled to prescribe for banks and non-bank credit and financial
organizations obligatory terms and conditions for conclusion of transactions
with customers.
When carrying
out banking activities, a bank and a non-bank credit and financial organization
are obliged, at a customer’s request, to present to the customer, for the
insight, the license to carry out banking activities and information on its
financial standing and results of performance of respectively that bank and
that non-bank credit and financial organization in the volume and in the order
established by the National Bank.
Article 23. Right of banks and non-bank credit and financial
organizations to judicial protection of their violated or challenged rights and
legitimate interests
Banks and
non-bank credit and financial organizations have the right to judicial
protection of their violated or challenged rights and legitimate interests,
including the right to appeal in court actions (omissions) of the National Bank
and other state bodies.
SECTION II
THE NATIONAL BANK
Chapter 4
Legal Status, Objectives and Functions of the National Bank
Article 24. The National Bank as the central bank of the Republic of
Belarus
The National
Bank is the central bank and a state body of the Republic of Belarus and
operates exclusively in the interests of the Republic of Belarus.
The National
Bank carries out its activities in accordance with the Constitution of the
Republic of Belarus, this Code, laws of the Republic of Belarus, normative
legal acts of the President of the Republic of Belarus and is independent in
its activities.
The National
Bank is accountable to the President of the Republic of Belarus.
The National
Bank's accountability to the President of the Republic of Belarus means that:
the President
of the Republic of Belarus approves the Statute of the National Bank as well as
changes and/or additions thereto;
the President
of the Republic of Belarus appoints, with the consent of the Council of the
Republic of the National Assembly of the Republic of Belarus, the Chairman and
members of the Board of the National Bank and removes them, with the
notification of the Council of the Republic of the National Assembly of the
Republic of Belarus, from office;
the President
of the Republic of Belarus designates an audit organization for auditing the
activities of the National Bank;
the
President of the Republic of Belarus approves the annual report of the National
Bank.
The National
Bank is a legal person and has the seal with the image of the State Emblem of
the Republic of Belarus and the inscription «Национальный банк Республики
Беларусь» [National Bank of the Republic of Belarus]. The
National Bank location is the City of Minsk.
The
objectives and principles of activity of the National Bank as well as its
rights, are determined by the Constitution of the Republic of Belarus, this
Code, other legislative acts of the Republic of Belarus.
Article 25. Main objectives of activities of the National Bank
The main
objectives of Activities of the National Bank are:
protecting
the Belarusian ruble and ensuring its stability, including its purchasing power
and the rate of exchange to foreign currencies;
ensuring
stability of the banking system of the Republic of
Belarus;
ensuring
efficient, reliable, and secure functioning of the payment system.
Profit making
is not the main objective of the National Bank.
Article 26. Functions of the National Bank
The National
Bank exercises the following functions:
develops
Fundamental Monetary and Credit Policy Guidelines of the Republic of Belarus and, in concert with the Government of the
Republic of Belarus, ensure the implementation of the single monetary and
credit policy of the Republic of Belarus in the order established by this Code
and by other legislative acts of the Republic of Belarus;
performs
operations necessary to attain the main objectives of the National Bank;
is the lender
of last resort for banks, providing refinancing thereto;
emits money;
carries out
the issuance (emission) of securities of the National Bank ;
forms the
gold reserve of the State Fund of precious metals and precious stones of the
Republic of Belarus to and carry out operative administration thereof within
the limits of its competence;
creates, upon
consent of the President of the Republic of Belarus, gold and foreign currency
reserves, and manages them within its competence;
carries
out currency regulation and control in accordance with the legislation of the
Republic of Belarus;
regulates
credit relations;
regulates
and organizes monetary circulation;
exercises
the functions of a finance agent of the Government of the Republic of Belarus
and local executive and administrative bodies on the issues of execution of the
republican and local budgets;
establishes
rules and procedures for carrying out banking operations;
gives its
consent to carrying out by banks and non-bank credit and financial
organizations of security operations in the cases stipulated by legislations of
the Republic of Belarus;
agrees the
issuance of securities of banks and non-bank credit and financial organizations
in the cases stipulated by legislation of the Republic of Belarus;
organizes
activities of banks and non-bank credit and financial organizations on the
issuance and circulation of bills of exchange (promissory notes), unless otherwise provided by the President of the Republic
of Belarus;
carries
out depositary activity in the order provided by the legislation of the
Republic of Belarus;
establishes
requirements for banks and non-bank credit and financial organizations on their
performing operations with forward and future contracts, options and other
financial instruments;
regulates
relations arising at the combination of the monetary means and/or securities
into the fund of bank management on the basis of contracts of trust management
of the bank management fund, unless otherwise provided by the legislative acts
of the Republic of Belarus;
determines
the order of performance settlements in the Republic of Belarus in
cash and cashless forms, including the amount,
settlements in cash monetary means in Belarusian rubles between legal persons,
their separate divisions, individual entrepreneurs;
organizes the
collection and carriage of cash monetary means, payment instructions, precious
metals and precious stones and other valuables;
carries out
settlement and/or cash servicing of the Government of the Republic of Belarus,
of organizations the list of which is determined in the Statute of the National
Bank, and other organizations in the cases stipulated by legislative acts of
the Republic of Belarus;
establishes
the order of opening bullion accounts and the conditions for their operating in
banks and non-bank credit and financial organizations in the territory of the
Republic of Belarus, as well as the terms for opening of such accounts by
residents in banks and other credit organizations outside its territory. For
the purposes of this Code, the term ‘resident’ has the meaning determined by
Clause 7 of Article 1 of the Law of the Republic of Belarus of July 22, 2003
“On currency regulation and currency control”;
establishes,
in concert with authorized state bodies, the order of importation into the
Republic of Belarus and of the exportation outside its territory of precious
metals and precious stones when performing banking operations;
establishes
prices for sale of precious metals and precious stones when carrying out
banking operations;
regulates
activities of banks and non-bank credit and financial organizations;
carries out
bank supervision;
establishes
in accordance with this Code and other legislative acts of the Republic of
Belarus the order of the state registration of banks and non-bank credit
financial organizations and performs their state registration;
carries out
licensing of banking activities;
carries
out the monitoring of financial stability;
organizes
the functioning of the payment system of the Republic of Belarus and its
carries out its supervision;
carries
out formation and development of the single settlement and information area,
ensures functioning of the automated information system of the single
settlement and information area;
ensures
the performance of a single state policy in the area of accounting and
reporting for the National Bank, banks and non-bank credit and financial
organizations;
carries
out the methodological guidance of the accounting and reporting of the National
Bank, banks and non-bank credit and financial organizations, other powers in
the sphere of accounting and reporting in accordance with the legislative acts
of the Republic of Belarus;
develops
and establishes the national standards of accounting and reporting and other
normative legal acts on accounting and reporting, obligatory for the
implementation by the National bank, banks and non-bank credit and financial
organizations;
establishes
procedures for banks and non-bank credit and financial organizations on drawing
up statistical reports according to forms and within time-limits determined by
the legislation of the Republic of Belarus;
forms
the statistics of the payment balance, international investment position and
external debt of the bank system, bank statistics, statistics of the financial
market, including of the internal foreign-exchange market and cash circulation,
as well as the statistics of the financial stability and publishes statistic
data on the official site of the National bank in the global computer network
Internet;
performs
the analysis of the payment balance, participates in the development of the
payment balance forecast by the bodies of state administration;
carries
out the analysis and the forecasting of the tendencies in the monetary and
credit sphere and publishes the relevant analytical materials on the official
site of the National bank in the global computer network Internet;
carries
out the monitoring of the organizations, based on the performance of regular
polls in order to find the tendencies of economic processes, their analysis and
forecast in collaboration with the tools of the monetary and credit policy;
implements
the state policy in the sphere of protection activity of banks and non-bank
credit and financial organizations;
establishes
for banks and non-bank credit and financial organizations obligatory
requirements on the safe functioning of the objects and safety of rendering of
bank services, protection of information resources and information,
dissemination and/or provision of which is limited, unless otherwise provided
by the legislative acts of the Republic of Belarus;
establishes
the requirements for the technical abilities of banks, non-bank credit and
financial organizations, their affiliates, structural divisions and remote
workplaces for the performance of bank operations, carries out the technical
norm setting and standardization in the field of banking activity;
exercises control
over data security and protection of information resources in banks and
non-bank credit and financial organizations;
establishes
the requirements for the reproduction of images of banknotes and coins ;
forms
credit histories on the basis of data on credit transactions presented by the
sources of formation of credit histories and provides credit reports to the
users of credit histories and subjects of credit histories;
concludes
agreements with central (national) banks and credit organizations of foreign
states;
exercises
other functions stipulated by this Code and other legislative acts of the
Republic of Belarus.
Article 27. Fundamental monetary and credit policy guidelines of the
Republic of Belarus
The National
Bank, in concert with the Government of the Republic of Belarus, shall,
annually before October 1 of the current year, submit the Fundamental Monetary
and Credit Policy Guidelines of the Republic of Belarus for the forthcoming
year to the President of the Republic of Belarus.
The
Fundamental Monetary and Credit Policy Guidelines of the Republic of Belarus
for the forthcoming year include:
brief
characteristics of the economic situation of the Republic of Belarus;
most
important parameters of the social and economic development forecast of the
Republic of Belarus for the forthcoming year, including forecast for the
indices of the balance of payments of the Republic of Belarus for the
forthcoming year;
principal
parameters and instruments of monetary and credit policy of the Republic of
Belarus for the forthcoming year;
estimates and
analysis of the fulfillment of main parameters and instruments of monetary and
credit policy of the Republic of Belarus for the current year;
arrangements
of the National Bank for the forthcoming year on the improvement of the banking
system of the Republic of Belarus, banking control, financial markets and
payment system of the Republic of Belarus.
The National
Bank informs, on a quarterly basis, the President of the Republic of Belarus
and the Government of the Republic of Belarus about the volume of money
emission and about the fulfillment of the Fundamental Monetary and Credit
Policy Guidelines of the Republic of Belarus.
The National
Bank informs, on a quarterly basis, the President of the Republic of Belarus
about the volume of gold and currency reserves to be created in accordance with
objectives and tasks determined in the Fundamental Monetary and Credit Policy
Guidelines of the Republic of Belarus.
Article 28. Rights of the National Bank to issue money
The National
Bank has the exclusive right to issue money.
The emission
of money is carried out by the National Bank in the form of release in the
circulation of cashless and cash money. Cash
money is released in the circulation in the form of banknotes and coins.
The emission
of money is carried out by the National Bank through short-term (up to one
year) refinancing of banks in order to maintain liquidity of the banking system
of the Republic of Belarus and stability of monetary circulation, by purchasing
Government securities circulating in the money market of state securities, and
by performing operations in the domestic and foreign money markets aimed to
increase the gold and foreign currency reserves. The
emission of money for long-term (over one year) refinancing of banks is
prohibited.
The National
Bank issues banknotes and coins in the form of releasing them in circulation by
selling to the banks, by purchasing foreign currency and other currency
valuables from legal and natural persons in order to ensure stable cash money
circulation, as well as in other cases relating to the attainment of the main
objectives of the National Bank.
The overall
volume of the emission of cashless money, banknotes and coins are determined
and regulated exclusively by the National Bank in accordance with objectives
and tasks determined in the Fundamental Monetary and Credit Policy Guidelines
of the Republic of Belarus.
The National
Bank emits the Belarusian ruble. The
restrictions of the circulation of the Belarusian ruble in the territory of the
Republic of Belarus is not allowed. The issuance
in the circulation of other monetary units in the territory of the Republic of
Belarus is prohibited
Article 29. Rights of the National Bank to organize the circulation of
banknotes and coins in the territory of the Republic of Belarus
The National
Bank determines the face value (denomination), design, levels of protection and
other characteristics of banknotes and coins emitted in the circulation,
publish cash money description in the official national printed mass media.
The National
Bank ensures printing of banknotes, stamping of coins, safekeeping of
non-emitted banknotes and coins, as well as storing and, if necessary,
confirmation of authenticity of banknotes and coins, destruction of original
and printing plates, plaster models and master coining instruments, dies and
banknotes and coins retired from the circulation.
Banknotes and
coins issued in circulation by the National Bank are the only legal means of payment
in the territory of the Republic of Belarus, except for the cases stipulated by
legislation of the Republic of Belarus.
Banknotes and
coins issued in circulation by the National Bank constitute an unconditional
liability of the National Bank and are secured by all its assets, and must be
accepted at face value in all kinds of payments, and for placement on accounts
and on deposit, and for transfers in the whole territory of the Republic of
Belarus.
The National Bank
has the exclusive right to retire issued banknotes and coins from circulation.
Banknotes and
coins put in circulation by the National Bank may not be declared invalid (not
being legal means of payment), unless a reasonably prolonged period for their exchange
for new banknotes and coins has been established. The
period for retiring banknotes and coins from circulation may not be less than
one year and more than ten years. In addition
to that, it is not allowed in introduce any restrictions on amounts or subjects
of exchange.
Decision on
exchange of banknotes and coins that have been put in circulation by the
National Bank for banknotes and coins of a new specimen is to be taken by the
President of the Republic of Belarus.
The National
Bank must notify preliminary the Government of the Republic of Belarus about
putting in circulation of new banknotes and coins, except for commemorative
banknotes and coins.
The National
Bank carries out exchange of specimens of banknotes and coins (including
commemorative banknotes and coins) with central (national) banks of foreign
states.
The National
Bank shall exchange worn-out banknotes and damaged banknotes and coins without
restrictions in compliance with regulations established by the National Bank.
The National
Bank forms and manages reserve fund of banknotes and coins.
The National
Bank has the right to emit, as collectibles, commemorative banknotes and coins
as well as bullion (investment) coins made of precious and non-precious metals.
Commemorative
banknotes as well as commemorative and bullion (investment) coins may circulate
both as legal means of payment and collectibles at value other than the face
value.
The National
Bank is entitled to carry out exportation from the Republic of Belarus of
commemorative and bullion (investment) without permit, and the exportation
thereof for the sale in the international market, without export license.
Article 30. Rights of the National Bank in the sphere of monetary
circulation
The National
Bank determines, in accordance with legislation of the Republic of Belarus in
the sphere of monetary circulation:
procedure
for performing cash operations, procedure for bank operations with cash money,
forms of reporting about bank operations with cash money and time-limits for
the presentation thereof;
procedure,
including the amount, of cash settlements in Belarusian rubles between legal
persons, their separate divisions, individual entrepreneurs;
rules for
storing, collection, carriage of cash money, payment instructions, precious
metals and precious stones and other valuables;
rules for
performing emission and treasury operations;
rules for
determining the features of fitness of cash money for use in payments, rules
for exchange of worn-out banknotes and damaged banknotes and coins, as well as
the procedure for the destruction thereof.
Article 31. Rights of the National Bank in the sphere of credit
relations
In sphere of
credit relations, the National Bank establishes:
a system for
bank refinancing;
rate of
refinancing and other interest rates for the operations of the National Bank;
volume
of bank refinancing;
normative
standards for obligatory reserves to be deposited with the National Bank
(reserve requirements.
The National
Bank regulates the total volume of credit to be extended by the National Bank
in accordance with Fundamental Monetary and Credit Policy Guidelines of the
Republic of Belarus.
Bank
refinancing means provision of banks by the National Bank with monetary means
in Belarusian rubles on the conditions of repayment and interest payment.
The
refinancing rate is a rate of the National Bank being the basic instrument of
regulation of the level of interest rates in the monetary market and serving as
a base for establishment of the interest rates on operations of providing the
liquidity to banks.
Forms,
procedure and conditions of refinancing are determined by the National Bank.
To
regulate the money market and credit resources market, the National Bank
establishes the amounts of interest rates for its own operations and in exceptional
cases – permissible (maximum and/or minimum) amounts of interest rates on bank
operations with monetary means of natural and/or legal persons.
Article 32. Rights of the National Bank concerning management of
functioning of the payment system of the Republic of Belarus and its
supervision
The National
Bank carries out the management of functioning of the payment system of the
Republic of Belarus and the supervision of the payment system through
establishing the rules for making payments, tariff policy, liquidity
management, as well as through collection, accumulation and analysis of indices
characterizing the condition of the payment system of the Republic of Belarus.
The National
Bank determines the rules, time-limits and standards for making settlements in
cash and cashless forms and the liability for the violation thereof.
The
National Bank maintains a central archive of interbank settlements data of the
National Bank and performs documentary synchronization of the archives of banks
on interbank settlements in the order established by the National Bank. The National Bank is entitled to use the archive for statistical and
other processing, as well as for confirmation of the operations performed while
carrying out interbank settlements, storage of electronic documents on
interbank settlements of banks.
Article 33. Rights of the National Banks in the sphere of
foreign currency regulation and currency control
In
the sphere of foreign currency regulations and control, the National Bank:
establishes
official exchange rates of the Belarusian ruble in relation to other
currencies;
regulates
circulation of currency valuables in the territory of the Republic of Belarus;
establishes
procedures for opening, operating and regime of accounts of residents and
non-residents in foreign currency in banks and non-bank credit and financial
organizations. For the purposes of this Code the
term ‘nonresident’ has the meaning determined by Clause 8 Article 1 of the Law
of the Republic of Belarus ‘On currency regulations and currency control’;
establishes
procedures for opening, operating and the regime of accounts of non-residents
in banks and non-bank credit and financial organizations in Belarusian rubles;
establishes
procedures for opening and operating, and regime of residents accounts in
Belarusian rubles and foreign currency in banks and non-bank credit and
financial organizations outside the Republic of Belarus;
establishes
procedures for carrying out operations in Belarusian rubles between residents
and non-residents;
establishes
rules for exchange trading in foreign currencies;
establishes
forms of reporting, accounting, and statistics of currency operations as well
as procedures and deadlines for presenting information on foreign currency
operations to the National Bank required for compiling the balance of payments
of the Republic of Belarus and for other purposes;
controls
foreign currency operations of banks and non-bank credit and financial
organizations;
determines,
in accordance with legislation of the Republic of Belarus, functions of
currency control agents that may be imposed on banks and non-bank credit and
financial organizations;
brings to
responsibility of banks and non-bank credit and financial organizations for
violating foreign currency legislation;
issues
permits for the performance of foreign currency operations in the cases
established by the legislation of the Republic of Belarus;
exercises
other powers established by this Code and other legislative acts of the
Republic of Belarus.
Article 34. Rights of the National Bank in the sphere of
bank supervision
The
main objectives of the National Bank in the sphere of bank supervision are the
maintenance of the stability of the bank system of the Republic of Belarus and
the protection of interests of depositors and other creditors.
The
National bank carries out the bank supervision by means of evaluation of the
level of exposures of a bank, non-bank credit and financial organization,
banking group and bank holding, their financial state and perspectives of
functioning, quality of management, observance of license and prudential
demands, established by this Code and the National Bank, evaluation of the
compliance with the requirements of the legislation of the Republic of Belarus
of founders, shareholders and other beneficiary owners of a bank, non-bank
credit and financial organization, and their managing organs and members of the
managing organs, organizational structure, sources of formation of the
statutory fund, normative capital, and by means of adoption of measures aimed
at the maintenance of safe functioning of a bank, non-bank credit and financial
organization and/or stability of the bank system and/or protection of interests
of depositors and other creditors of a bank, non-bank credit and financial
organization.
For
the purposes of this Code, the beneficiary owner of a bank, non-bank credit and
financial organization means a state, organization or natural person, which
directly or indirectly (through other natural persons and/or other
organizations) own shares of the bank, non-bank credit and financial
organization. The basis for the
recognition of the existence of indirect (through other natural persons and/or
other organizations) ownership of shares of a bank, non-bank credit and
financial organization, order of the calculation of a portion of shares being
in such ownership, as well as the criteria for the recognition of the state,
organization or natural persons as a beneficiary owner are established by the
National Bank.
The
National Bank in the sphere of bank supervision establishes:
standards of safe operation and other
requirements in accordance with this Code for banks, non-bank credit and
financial organizations, banking groups and bank holdings and carries out the
supervision of their observance;
requirements
to the organization of corporate governance, risk management and internal
control in banks, non-bank credit and financial organizations, banking groups
and bank holdings;
requirements
toward the founders, shareholders and other beneficiary owners of the bank,
non-bank credit and financial organization, which own or will own shares of the
bank, non-bank credit and financial organization in the amount equal or
exceeding five percent (except for state bodies, legal persons and natural
persons, acting on behalf of the Republic of Belarus or its
administrative-territorial units);
qualification
requirements and/or requirements to the business reputation, demanded from the
independent directors and/or other members of the board of directors
(supervisory board), with the exception of representatives of the state in
governing bodies of the bank, members of collegiate executive body of the bank,
non-bank credit and financial organization, heads and chief accountants of
banks, non-bank credit and financial organizations, and their deputies,
determines cases and order of the performance of the evaluation of compliance
with the qualification requirements and/or requirements to the business
reputation of these persons, as well as performs such evaluation;
requirements
to the business plan of the created bank, non-bank credit and financial
organization, strategic plan of development of the existing bank, non-bank
credit and financial organization and evaluates compliance of the mentioned
business plans and strategic plans of development with the established
requirements in the order determined by the National Bank, as well as carries
out the monitoring of their performance;
volume
and content of report and other information necessary for the purposes of the
bank supervision about the activities of the bank, non-bank credit and
financial organization, order of its drawing up and submission to the National
Bank;
volume
and the procedure of disclosure of the information on the activity of bank,
non-bank credit and financial organization, banking group and bank holding;
volume
and content of the information received during the supervision, exchange of which
with supervisory bodies of other states is carried out during the
implementation of treaties of the Republic of Belarus.
The
National bank, while carrying out the bank supervision, is entitled to:
request
and receive the information from state bodies and other organizations,
necessary to carry out bank supervision;
require
the banks, non-bank credit and financial organizations, legal persons not being
banks or non-bank credit and financial organizations and recognized in
accordance with this Code making part of a bank holding, to submit reports and
other information in accordance with this Code and normative legal acts of the
National Bank;
perform,
in accordance with the legislative acts of the Republic of Belarus, inspections
of banks, non-bank credit and financial organizations, legal persons not being banks or non-bank credit and financial
organizations and recognized in accordance with this Code making part of a bank
holding;
engage
with observance of the requirements of legislative acts of the Republic of
Belarus an auditing organization (auditor – individual entrepreneur) and
workers of the organization that carries out the guaranteed compensation of
bank deposits of natural persons, for performing the inspection;
act
as the ordering consumer of a special auditor’s report in respect of the bank,
non-bank credit and financial organization,
legal persons not being banks or non-bank credit and financial
organizations and recognized in accordance with this Code making part of a bank
holding;
apply
motivated estimation in the cases and under
the procedure established by this Code and the National Bank. The motivated
estimation is deemed to be a formalized, logically
reasoned professional opinion of workers of the National Bank which may be a
ground for a decision in the sphere of bank supervision performance to be taken
by the Board of the National Bank and officials of the National Bank authorized
to take respective decisions;
take
measures of supervisory reaction, including measures of influence provided for
by this Code to the bank, non-bank credit and financial organization, leading
organization of a bank group and/or bank holding, legal person not being banks
or non-bank credit and financial organizations and recognized in accordance
with this Code making part of a bank holding, persons that can influence
directly and/or indirectly (through third parties) substantially the decisions
taken by governing bodies of the bank and/or another legal person recognized
making part of the bank group and/or bank holding;
exercises
other powers established by this Code and other legislative acts of the
Republic of Belarus.
Information
received in the course of bank supervision performance is not to be disclosed,
with the exception of the cases provided for by the legislative acts of the
Republic of Belarus and treaties of the Republic of Belarus.
Article 35. Peculiarities of carrying out the supervision of bank activities on a consolidated basis
For
carrying out the supervision of bank activities on a
consolidated basis and complex evaluation of risks, the National Bank carries
out supervision of activities of bank groups and bank holdings.
A bank group
is recognized:
a complex of
banks and/or non-bank credit and financial organizations where one of the legal
persons exerts directly or indirectly (through third persons) a substantial
influence on decisions taken by the governing bodies of another legal person;
a complex of
banks and/or non-bank credit and financial organizations the decisions of
which, taken by their governing bodies, could be substantially influenced by
the same natural or legal person that is not recognized to be the head
organization of this bank group, directly or indirectly (through third
persons), in the form of control.
A
bank holding is recognized:
a complex of
banks and/or non-bank credit and financial organizations and other legal
persons not being banks or non-bank credit and financial organizations where
one of the legal persons exerts directly or indirectly (through third persons)
a substantial influence on decisions taken by the bodies of management of
another legal person;
a complex of
banks and/or non-bank credit and financial organizations, and other legal
persons not being banks or non-bank credit and financial organizations the decisions
of which, taken by their governing bodies, could be substantially influenced by
the same natural or legal person that is not recognized to be the head
organization of this bank group, directly or indirectly (through third
persons), in the form of control.
The head
organization of a bank group is recognized a bank or non-bank credit and
financial organization capable of exerting directly or indirectly (through
third persons) a substantial influence on decisions taken by the governing
bodies of another bank and/or non-bank credit and financial organization making
part of the bank group.
The head
organization of a bank holding is recognized a bank or non-bank credit and
financial organization, or another legal person non being bank or non-bank
credit and financial organization capable of exerting directly or indirectly
(through third persons) a substantial influence on decisions taken by the
governing bodies of another bank and/or non-bank credit and financial
organization or another legal person making part of the bank holding.
The
participant of a bank group is recognized to be a bank or non-bank credit and
financial organization the decisions of which, taken by their governing bodies,
could be substantially influenced by the head organization of this bank group,
directly or indirectly (through third persons).
The
participant of a bank holding is recognized to be a bank or non-bank credit and
financial organization, and another legal person not being bank or non-bank credit
and financial organization the decisions of which, taken by their governing
bodies, could be substantially influenced by the head organization of this
holding, directly or indirectly (through third persons).
The
head organization of a bank group and/or bank holding, as well as participants
of a bank group and/or bank holding are recognized as such in accordance with
the methodology approved by the National Bank.
A bank and a
non-bank credit and financial organization may be recognized to be a part of
simultaneously one or several bank groups and/or one or several bank holdings. A legal person not being a bank or non-bank credit and financial
organization may be recognized to be a part of simultaneously one or
several bank groups and/or one or several bank holdings.
The influence
is considered substantial if it enables to determine decisions (reject
undesirable decisions) taken by governing bodies of a legal person, including
to determine condition for its carrying out entrepreneurial activities, by virtue
of at least one of the following grounds:
disposal of
such a number of votes in any of the governing bodies of the legal person,
which enables to determine decisions (reject undesirable decisions) taken by
that body except for the decisions to be taken unanimously;
disposal of
such a number of votes in an authorized governing body of the legal person,
which enables to elect the one-man executive governing body of the legal person
and/or more than half of members of the collegial executive body and/or of the
board of directors (supervisory board);
disposal of
powers to designate the one-man executive body of the legal person;
exercise of
powers of the executive body of the legal person on the basis of a contract;
conclusion of
a trust management contract concerning all property of the legal person or
another contract according to which the rights on management of the activities
of such legal person are acquired.
The
substantial influence in the form of control is understood as substantial
influence which permits due to the presence of at least one of the grounds
provided for by part ten of this Article to determine the decisions taken by
governing organs of a legal person.
Substantial
influence in the form of control may be exercised by two or more individual
entrepreneurs and/or commercial organizations on the basis of a contract on
joint activity concluded between them (joint control).
Substantial
influence exerted indirectly means substantial influence exerted on decisions
taken by governing bodies of a legal person through third persons by virtue of
at least one of the grounds provided for by part ten of this Article, as well
as substantial influence exerted on the decisions taken by the governing bodies
of a legal person by a natural person through another natural person, other
natural persons due to the fact that mentioned natural persons have close ties
of kinship or affinity.
The National
Bank shall be informed in the established order:
by the head
organization of a bank group and/or bank holding about its ability to exert
directly or indirectly (through third persons) substantial influence on
decisions taken by bodies of management of another legal person (other legal
persons);
by
a bank or non-bank credit and financial organization about the ability of
another person to exert directly or indirectly (through third persons)
substantial influence on decisions taken by their governing bodies;
by
the head organization of a bank holding, not being a bank or non-bank credit
and financial organization, about persons capable exert substantial influence
directly on the decisions taken by its governing bodies;
by
the head of a bank holding, not being a bank or non-bank credit and financial
organization, about persons that transferred (received) the right to participate
in the management of such head organization on the ground of a power of
attorney and/or contract;
by
a bank, non-bank credit and financial organization about persons that
transferred (received) the right to participate in the management of a legal person
not being a bank or non-bank credit and financial organization and capable to
exert substantial influence directly or indirectly on the decisions taken by
governing bodies of the bank, non-bank credit and financial organization, on
the grounds of a power of attorney and/or contract.
For
the purposes of carrying out the bank supervision on a consolidated basis, the
National Bank:
approves
the methodology of evaluation of a possibility to exert substantial influence
by a bank, non-bank credit and financial organization, another legal person not
being bank or non-bank credit and financial organization, directly or
indirectly (though third persons) on the decisions taken by the governing
bodies of another legal person, including in the form of control and their
recognition as the head organization of a bank group and/or bank holding;
keeps
records of head organizations and participants of bank groups, bank holdings,
as well as other persons, exerting substantial influence on banks and/or
non-bank credit and financial organizations;
establishes
the volume and order of drawing up and submitting to the National Bank of a
consolidated reports and other information important for carrying out the bank
supervision about the activities of a bank groups and/or bank holding;
establishes
order of submission by the participants of bank groups and/or bank holdings to
head organizations of such groups and/or holdings of the information about its
activities, necessary to draw up consolidated reports on the activities of a bank
group and/or bank holding;
is entitled
to consider, on the basis of the methodology developed by it, a bank, non-bank
credit and financial organization, another legal person not being bank or
non-bank credit and financial organization, as the leading organization of a
bank group and/or bank holding and to require, in accordance with part two of
Article 119 of this Code, its submitting to the National Bank of consolidated
reports about the activities of the bank group and/or bank holding;
is
entitled to require from the head organization of a bank group and/or bank
holding to include into the consolidated reports on activities of a bank group
and/or bank holding the information about the activities of a legal person
whose decisions taken by its governing bodies such head organization can
influence substantially directly or indirectly (through third persons), as well
as to recognize such a legal person to be a part of such a bank group and/or
bank holding.
The
head organization of a bank group and/or bank holding is non entitled to
disclose the received information about the activities of participants of a
bank group and/or bank holding, with the exception of the cases provided by
this Code and other legislative acts of the Republic of Belarus.
Article 351. Monitoring of financial stability
The
monitoring of financial stability is carried out by the National Bank in
cooperation with the Government of the Republic of Belarus.
The
objects of monitoring of financial stability are banks and non-bank credit and financial
organizations, other financial intermediary,
financial markets, payment system.
The
monitoring of financial stability is understood to be observance of the objects
of monitoring when they carry out their inherent activities and of their
capability to carry out such an activity in case of destabilizing influence of
interim and outer factors, as well as complex analysis of factors influencing
the preservation of financial stability.
The
results of the monitoring of financial stability shall be published by the
National Bank in the established order on the official site of the National
Bank in the global computer network Internet.
Article 36. Right of the National Bank to judicial recourse
The National
Bank is entitled to bring lawsuits in the economic court for invalidating
transactions of banks and non-bank credit and financial organizations that have
been made in violation of legislation of the Republic of Belarus.
The National
Bank is entitled to bring lawsuits in the economic court to seek the liquidation
of banks or non-bank credit and financial organizations on grounds stipulated
by legislative acts of the Republic of Belarus.
Chapter 5
Specifics of Functioning of the National Bank
Article 37. Interaction of the National Bank with the Government of the
Republic of Belarus and other state bodies
The National
Bank, in concert with the Government of the Republic of Belarus, ensures the
application of a single monetary and credit policy of the Republic of Belarus.
The National
Bank and the Government of the Republic of Belarus inform each other about the
supposed actions which are of national importance, coordinate their activities,
hold regular mutual consultations.
The
Government of the Republic of Belarus, the National Statistical Committee of
the Republic of Belarus, the Ministry of Finance of the Republic of Belarus,
the Ministry of Economy of the Republic of Belarus, the Ministry on Taxes and
Dues of the Republic of Belarus, Ministry of Internal Affairs of the Republic
of Belarus, Ministry of Justice of the Republic of Belarus, the State Customs
Committee of the Republic of Belarus, the Committee of State Control of the
Republic of Belarus, and the National Bank shall furnish one another, in a
mutually agreed manner and scope, on a gratuitous basis and in accordance with
the legislation of the Republic of Belarus, with statistical, analytical and
another information obtained while carrying out control and supervision
functions.
The National
Bank gives advice to the Ministry of Finance on matters of issuance (emission)
of state securities and of redemption of national debt of the Republic of
Belarus, having regard to their influence on the position of the bank system of
the Republic of Belarus and priorities of the monetary and credit policy of the
Republic of Belarus.
The National
Bank is not liable for obligations of the Government of the Republic of
Belarus. The Government of the Republic of
Belarus is not liable for obligations of the National Bank, except for the
cases stipulated by legislative acts of the Republic of Belarus.
The
Chairman of the Board of the National Bank or one of his deputies on his behalf
may take part in the meetings of the Presidium of the Council of Ministers of
the Republic of Belarus in a consultative capacity.
Article 38. Submission of information to the National Bank
Banks,
non-bank credit and financial organizations, and legal persons not being banks
or non-bank credit and financial organizations and recognized in accordance
with this Code to be a part of a bank holding, in the order established by the
National Bank, as well as state bodies and other organizations, in the manner
agreed with the National Bank, submit to the National Bank financial and
economic information, as well as reference and analysis materials necessary for
the National Bank to perform its functions.
The
National Bank has the right to request and obtain on a gratuitous basis from
the state bodies not mentioned in part three of Article 37 of this Code and
from other organizations, in the manner agreed with them, information necessary
for completion of financial, banking, and monetary and credit statistics and
for the formation of the payment balance, including the international
investment position and gross external debt.
The
information received from state bodies and other organizations may not be
disseminated without their consent.
The
National Bank establishes for legal persons not being banks or non-bank credit
or financial organizations and recognized in accordance with this Code to be a
part of a bank holding, the procedure for submission of the information about
their activities, necessary to draw up consolidated reports.
The National
Bank maintains an integrated fund of supervisory and control information about
banks and non-bank credit and financial organizations in the manner established
by the National Bank.
The
National Bank publishes analytical information, aggregate indicators of
financial, banking, and monetary and credit statistics, payment balance,
international investment position and gross external debt, exchanges the said
information with central (national) banks of foreign states, provides it to
international financial organizations.
Article 39. Normative legal acts of the National Bank
The National Bank,
within its powers, adopts normative legal acts binding upon the republican
bodies of state administration, local government and self-government
authorities, all banks and non-bank credit and financial organizations, and
other legal persons operating in the territory of the Republic of Belarus, as
well as natural persons.
The National
Bank is entitled to adopt (issue) normative legal acts jointly with the
Government of the Republic of Belarus or the republican bodies of state
administration.
Normative legal
acts of the National Bank must comply with the legislative acts of the Republic
of Belarus. In the case of a contradiction of a
normative legal act of the National Bank with a legislative act of the Republic
of Belarus, the latter shall be applied.
Article 40. Property of the National Bank
Property of
the National Bank is in the ownership of the by the Republic of Belarus and is
assigned to the National Bank on a right of operative administration.
The National Bank
exercises its rights to possess, use, and dispose of the property of the
National bank, including gold and foreign currency reserves, in accordance with
the objectives of the National Bank and in the manner stipulated by its
Statute. The seizure and encumbrance of the
said property are not allowed except for the cases stipulated by legislative
acts of the Republic of Belarus.
Article 41. Authorized Fund of the National Bank
The amount of
the authorized fund of the National Bank is determined by its Statute.
Article 42. Reserve fund and other funds of the National Bank
The National
Bank sets up a reserve fund and other funds intended to support its activity.
Setting up
and use of the reserve fund and other funds are to be carried out in the manner
stipulated by the Statute of the National Bank.
Article 43. Special reserves of the National Bank
The
National bank creates, to cover potential losses on its operations, special
reserves of general banking risks with allocation of the amounts of created
reserves attributed to the expenses of the National Bank.
The
formation and usage of special reserves of general banking risks is carried out
in the order established by the National bank.
Article 44. Profit of the National Bank and distribution thereof
The profit of
the National Bank is derived as a result of its carrying out activity in
accordance with this Code and other acts of legislation of the Republic of
Belarus.
The
National Bank annually sends to the reserve of the organization that carries
out the guaranteed compensation of banking deposits of natural persons, eighty
percent of the profit determined on the basis of financial reports, and the
remaining part of the profit uses to increase (create) its funds.
Article 45. Compensation of losses of the National Bank
The
compensation of losses of the National Bank sustained in the result of its
activities is to be made out of the reserve fund of the National Bank.
Article 46. Annual reports of the National Bank
The annual
reporting period for the National Bank is from January 1 to December 31.
The
National Bank shall, annually not later than April 15 of the year following the
reporting year, submit the annual report to the President of the Republic of
Belarus.
The annual
report of the National Bank includes:
report
on activities of the National Bank, and fulfillment of the Fundamental Monetary
and Credit Policy Guidelines of the Republic of Belarus;
annual
financial reports (balance sheet, profit and loss report, profit and its
distribution, changes in proprietary capital, formation and use of funds, expenses on maintenance of
the National Bank, on fulfillment of the estimates of capital investments),
confirmed by an audit organization.
Once
approved by the President of the Republic of Belarus, the annual report of the
National Bank shall be published on the official site of the National Bank in
the global computer network Internet.
Article 47. Audit of annual financial reports of the
National Bank
Audit
of the annual financial reports of the National Bank shall be carried out in
the order established by the legislation of the Republic of Belarus.
Audit
organization to hold the audit of the annual financial reports of the National
Bank is determined by the President of the Republic of Belarus for a period not
exceeding five years from several organizations at the proposal of the National
Bank.
Article 48. Restriction on participation of the National Bank in
economic companies and other legal persons
Unless
otherwise stipulated by the President of the Republic of Belarus, the National
Bank may not participate in economic companies and other legal persons, with
the exception of certain banks and organizations carrying out the reimbursement
of deposits of natural person, of organizations supporting functioning of the
National Bank, including those engaged in the securities market, effecting
inter-bank settlements, financing and/or developing and introducing banking
technologies, as well as international organizations engaged in developing
cooperation in monetary, foreign currency and banking spheres.
The order of
the participation of the National Bank in organizations referred to in part one
of this Article is determined by the President of the Republic of Belarus.
Article 49. Delimitation of responsibilities of the National Bank,
banks and non-bank credit and financial organizations
The National
Bank is not liable for obligations of banks and non-bank credit and financial
organizations, except for the cases when the National Bank assumes such
obligations.
Banks and
non-bank credit and financial organizations are not liable for obligations of
the National Bank, except for the cases when banks and non-bank credit and
financial organizations assume such obligations.
Article 50. Participation of the National Bank in international
organizations
In accordance
with legislation of the Republic of Belarus, the National Bank may participate
in activities of international banking foundations, unions, and associations.
The National
Bank represents the Republic of Belarus in international organizations on
monetary and credit policy issues of the Republic of Belarus, foreign currency
regulation, and other matters within its powers.
Article 51. Interrelationships between the National Bank and credit
organizations of foreign states
Interrelationships between the National Bank and credit
organizations of foreign states are established in accordance with treaties of
the Republic of Belarus, legislation of the Republic of Belarus, and inter-bank
agreements.
For the
purposes of carrying out its functions, the National Bank may open
representative offices in foreign states.
Chapter 6
Operations of the National Bank
Article 52. Operations performed by the National Bank
Operations
performed by the National Bank include:
extending
credits to banks by way of refinancing;
settlement
and cash servicing of the Government of the Republic of Belarus, organizations
that appear on the list included in the Statute of the National Bank, and other
organizations in the cases stipulated by legislative acts of the Republic of
Belarus;
rediscounting
of bills of exchange and promissory notes;
securities
market operations;
collection
and carriage of cash monetary means, payment instructions, precious metals and precious
stones and other valuables;
management,
within its competence, of gold and foreign currency reserves, as well as
operations with precious metals, with commemorative banknotes,
commemorative and bullion (investment) coins which are legal means of payment
of foreign states, and precious stones in any kind
and state, including the sale, purchase and exchange thereof in the territory
the Republic of Belarus and abroad;
opening and
operating bullion accounts both within and outside the territory of the Republic
of Belarus;
transfer of
precious metals in the form of small bars on a gratuitous basis in the cases
stipulated by legislations of the Republic of Belarus;
accepting
monetary means of banks and non-bank credit and financial organizations, as
well as the organization that carries out the guaranteed
compensation of banking deposits of natural persons,
in deposits;
operations in
the Republic of Belarus and outside its limits with commemorative banknotes,
commemorative and bullion (investment) coins which are legal means of payment
of the Republic of Belarus, at a price not lower than the nominal;
extending, at
the decision of the President of the Republic of Belarus, of bank guarantees
sureties for investment projects;
inter-bank
settlements, including settlements with non-bank credit and financial
organizations;
accepting
valuables for safekeeping;
remittance of
money and other settlement operations;
sale of
foreign currency, foreign currency payment instructions and other currency operations
stipulated by legislations of the Republic of Belarus, including documentary
operations and operations on extending credits in foreign currency;
foreign
currency exchange operations with natural persons, and also with organizations
the list of which is determined in the Statute of
the National Bank, and other organizations in the cases provided for by the
legislative acts of the Republic of Belarus;
provision of
banking services to governments of foreign states, central (national) banks and
financial bodies of those states, and to international organizations;
intermediary
services in the capacity of a financial agent of the Government of the Republic
of Belarus for the distribution of Government securities;
operations on
servicing the state debt of the Republic of Belarus;
The National
Bank have no right to provide services on carrying out bank operations to legal
persons not having license to carry out banking activities and to natural
persons, except for the cases stipulated by this Article.
Unless
otherwise stipulated by this Code or other legislative acts of the Republic of
Belarus, the National Bank shall perform bank operations for a fee.
Article 53. Credit activity of the National Bank
In
the sphere of credit activity, the National Bank carries out refinancing of
banks against state securities or other collateral determined by the Board of
the National Bank.
The
National bank has not right to grant credits, except for the cases, provided by
part one of this Article, as well as by the law on republican budget for the
next fiscal year and/or the President of the Republic of Belarus to finance the
deficit of the budget and acquire state securities at their primary placement.
Article 54. National Bank operations with foreign currency, precious
metals and precious stones
The National
Bank is entitled to purchase, sell foreign currency, as well as payments
instructions in foreign currency, exchange, allocate, accept, and store foreign
currency and to perform other foreign currency operations stipulated by
legislation of the Republic of Belarus.
To replenish
or regulate the size of gold and foreign currency reserves, the National Bank
may perform the following operations with precious metals and precious stones:
opening and
operating bullion accounts both within and outside the territory of the
Republic of Belarus;
purchase,
sale, exchange, trust management, placement on deposit, accepting for deposit,
and storage of precious metals in the form of bullions, nuggets, coins, and
other forms and conditions, and precious stones, as well as pledge thereof.
The
operations with precious metals and precious stones mentioned in part two of
this Article are performed by the National Bank without a special permit
(license) to carry out activities concerning precious metals and precious
stones.
When
the National Bank buys foreign currency from a bank for Belarusian rubles with
a commitment to sale by this bank of foreign currency for Belarusian rubles
after a certain period of time, the National Bank, in case of violation by the
bank of the time limit of fulfillment of obligations, has the right to satisfy
its claims in the order established by the legislation of the Republic of
Belarus.
Article 55. Operations of the National Bank with securities
When carrying
out monetary and credit regulation, the National Bank issues (emits)
securities, determine technical requirements for their manufacture, and to
perform operations with securities.
The National
Bank provides intermediary services as a financial agent of the Government of
the Republic of Belarus in the state securities market and participates in
their circulation.
Article 56. Storage, collection, and carriage of cash, payment
instructions, precious metals and precious stones and other valuables
The National
Bank is entitled to carry out storage, collection, and carriage of cash
monetary means, payment instructions, precious metals, precious stones and
other valuables of the National Bank, banks, non-bank credit and financial
organizations, and natural and legal persons in the manner prescribed by the
National Bank.
Article 57. Servicing the national debt of the Republic of Belarus
In accordance
with legislation of the Republic of Belarus, the National Bank exercises
functions of a financial agent of the Government of the Republic of Belarus for
servicing the national debt of the Republic of Belarus.
Chapter 7
Structure, Governing BodY and Organizations of the National Bank
Article 58. Structure of the National Bank
The National
Bank consists of a central apparatus and structural divisions located within
and outside of the territory of the Republic of Belarus.
Structural
divisions of the National Bank operate based on regulations to be approved in
the order established by the Statute of the National Bank.
Article 59. [Excluded]
Article 60. Board of the National Bank
The supreme
governing body of the National Bank is the Board of the National Bank, a
collective body that establishes main guidelines of activities of the National Bank,
carries out its administration and governance.
The
number of members of the Board of the National Bank is determined by the
President of the Republic of Belarus.
The
competence of the Board of the National Bank and procedures for convening its
meetings are determined by the Statute of the National Bank. The
Board of the National Bank organizes its work in compliance with the rules of
procedure.
Unless
otherwise stipulated by the Constitution and other legislative acts of the
Republic of Belarus, members of the Board of the National Bank may not hold
other state offices, as well as be affiliated with a political party.
Restrictions
referred to in part three of Article 68 of this Code cover the members of the
Board of the National Bank.
Article 61. Formation of the Board of the National Bank
The
Chairman and other members of the Board of the National Bank are appointed by
the President of the Republic of Belarus with the consent of the Council of the
Republic of the National Assembly of the Republic of Belarus for a term of five
years in the order established by the legislative acts of the Republic of
Belarus.
The
same person may be appointed as a Chairman and a member of the Board of the
National Bank not more than for two consecutive terms.
The
Chairman and the members of the Board of the National bank are appointed from
the employees of the National Bank who are public
servants.
The
representative of the Government of the Republic of Belarus may take part in
the meetings of the Board of the National Bank in a
consultative capacity.
Article 62. Dismissal from office of the chairman and/or member(s) of
the Board of the National Bank
The
President of the Republic of Belarus is entitled to dismiss the Chairman of the
Board of the National Bank from office, with notification of the Council of the
Republic of the National Assembly of the Republic of Belarus in the case of:
expiration of
the term of office;
inability
to perform functions for health conditions on the basis of the opinion of the medical
advisory commission;
resignation;
attainment of
the age of retirement (at the accord of the Chairman of the Board of the
National Bank);
non-compliance,
while in office, with the Constitution of the Republic of Belarus, laws the
Republic of Belarus, decrees, edicts, and administrative orders of the
President of the Republic of Belarus and other acts of legislation of the
Republic of Belarus binding for the National Bank;
non-observance
of restrictions established in part three of Article 68 of this Code;
disclosure of
data constituting state or official secret;
being
convicted guilty of committing a crime by a court sentence;
commission of
acts that give reason to loss of trust toward this person.
The
President of the Republic of Belarus is entitled to release members (a member)
of the Board of the National Bank from office with the notification to the
Council of the Republic of the National Assembly of the Republic of Belarus
upon proposal of the Chairman of the Board of the National Bank, in the cases
provided by part one of this Article.
Article 63. Decision-making by the Board of the National Bank
The
meeting of the Board of the National Bank is deemed to be legally qualified
provided that at least 70 percent of the members of the Board are present. The meeting of the Board of the National Bank shall not be held without
the Chairman of the Board of the National Bank or a person that substitutes
him.
Decisions
of the Board of the National Bank are taken by a simple majority of votes of the
members of the Board attending its meeting and are formalized as resolutions of
the Board of the National Bank. In
case of a parity of votes, that decision is considered to be taken for which
voted the Chairman of the Board of the National Bank.
Article 65. Chairman of the Board of the National Bank
Chairman of
the Board of the National Bank governs the activities of the National Bank and
represents the National Bank as a state body and the central bank of the
Republic of Belarus.
The powers of
the Chairman of the Board of the National Bank are determined by the Statute of
the National Bank.
Article 65. [Excluded]
Article 66. [Excluded]
Article 67. [Excluded]
Article 68. National Bank employees
The National Bank
employees are divided into employees being public servants and employees that
perform technical servicing and support of activities of the National Bank and
are not public servants.
The legal
status of the National Bank employees being public servants is determined by
legislation of the Republic of Belarus on public service.
Alongside
the restrictions provided for by the legislation of the Republic of Belarus on
public service, the National Bank employees being public servants may not
purchase personally or through intermediaries the shares of banks or non-bank
credit and financial organizations.
The
National Bank employees may obtain credits from other banks.
The terms of
recruitment, dismissal, remuneration of labour, and rights and duties of
National Bank employees are determined by the Board of the National Bank in
accordance with legislation of the Republic of Belarus.
Certain
categories of National Bank employees according to the list to be approved by
the Board of the National Bank in accordance with legislation of the Republic
of Belarus have the right to wear uniform and to carry and keep arms used while
performing their duties.
Article 69. Organizations of the National Bank
The National
Bank has the right to establish, upon obtaining the consent of the President of
the Republic of Belarus, organizations necessary for maintenance of its
activities.
The
organizations of the National Bank operate based on statutes to be approved in
the order established by the Statute of the National Bank.
SECTION III
BANKS AND NON-BANK CREDIT AND FINANCIAL ORGANIZATIONS
Chapter 8
General Provisions Relating to Banks
Article 70. Bank Status
A bank is a
commercial organization registered in the order established by this Code and
having, on the basis of a license to carry out bank activities, an exclusive
right to perform, in the aggregate, banking operations stipulated by part one
of Article 8 of this Code.
A bank is
entitled to perform other banking operations specified in the license to carry
out bank activities.
Article 71. Organizational and legal form of the bank
The
bank is created in the form of a joint-stock company in the order established
by this Code and other legislation of the Republic of Belarus.
Article 72. Establishing by a bank (participation in establishing) of
commercial organizations
For carrying
out its statute objectives and with consent of the National Bank, a bank is
entitled to be founder (participant) of commercial organizations in the order
and on the conditions determined by this Code of other legislation of the
Republic of Belarus.
Article 73. Statute of bank
A bank shall
have the statute approved in the manner prescribed by legislation of the
Republic of Belarus for a legal person of a relevant organizational and legal
form.
The statute of
a bank shall include:
the name of
the bank, having regard to the requirements stipulated by this Code;
indication to
its organizational and legal form;
date on the
bank’s location (location of a permanent executive body of the bank);
list
of banking operations in accordance with this Code;
information
on the amount of the authorized fund;
information
on the governing bodies, bodies of internal audit, procedures of their
formation and powers thereof;
other data
provided for by the legislation of the Republic of Belarus for the statute of a
legal person of a relevant organizational and legal form.
Article 74. Bank Name
A bank must
have a name which shall comply with the requirements of legislation of the
Republic of Belarus. The name of the bank must indicate
the nature of this bank’s activity, through the use of the word
"bank", as well as its organizational and legal form.
Legal
persons registered in the territory of the Republic of Belarus in the
established manner may not include in their name the word "bank",
except for legal persons that have obtained a license to carry out banking
operations from the National Bank, unless otherwise provided by the legislative
acts of the Republic of Belarus.
Article 75. Authorized fund of a bank
The
authorized fund of a bank is to be formed from the contributions of its
founders (shareholders).
The minimum
size of the authorized fund of a bank being created is established by the
National Bank upon obtaining the consent of the President of Belarus.
When
establishing a bank, the minimum size of its authorized fund must be formed of
monetary means.
For
the formation of the authorized fund of a bank, only own means of its founders
may be used, and for the increase of the authorized fund of a bank – own means
of shareholders of the bank, other persons and/or sources of its own means.
Own
means of a founder (shareholder) of a bank, other persons mean any legally
acquired monetary means or other property belonging to them on the right of
ownership, right of economic management or by virtue of another right in
property. The sources of own means
of a bank are understood to be undivided profits of former years and funds
created at the expense of profit, in case if mentioned sources were not used. As
non-monetary contribution only the property necessary
to carry out bank activity and attributed to fixed asset, with the exception of
objects of unfinished construction, may be used.
Budgetary
means and means from state non-budgetary funds as well as state property objects
may be used for the formation of the authorized fund of a bank only in the
cases and in the order stipulated by legislative acts of the Republic of
Belarus.
Attracted
monetary means and/or criminal incomes may not be used for the formation and
the increase of the size of the authorized fund of a bank.
Monetary
means and other property, submitted by the bank itself, as well as monetary
means and other property submitted by other persons may not be used to increase
the authorized fund of the bank, in the case if the bank accepted the risks
arising in relation to provision to the bank of such monetary means and other
property.
The property
the alienation of which is restricted by the owner, by the legislation of the
Republic of Belarus or by a contract may not be contributed to the authorized
fund of a bank.
Monetary
contributions to the authorized fund of a bank may be made both in Belarusian
rubles and in foreign currency, except for the cases provided for by the
legislation of the Republic of Belarus. However,
the entire authorized fund must be stated and accounted in Belarusian rubles. The recalculation of the foreign currency into the official monetary
unit of the Republic of Belarus is carried out according to the official
exchange rate of the Belarusian ruble to the relevant foreign currency,
established by the National Bank on the date of introduction of the monetary
contribution into the authorized fund. The
order of determining the date of making monetary contributions into the
authorized fund of the bank is established by the National Bank.
Disposal
of monetary means and other property, contributed to the authorized capital is
allowed only after the state registration of the bank (state registration of
changes and/or additions being introduced in the statute of a bank, connected with the increase
of the amount of the authorized fund).
Article 76. Procedures for formation of authorized fund of a bank
Monetary
means, with the exception of the cases provided by part two of this Article,
contributed to the authorized fund of a bank are to be remitted to a temporary
account opened by the bank founders or by the bank, in the case of an increase
of its authorized fund, in the National Bank or, upon obtaining the consent of
the National Bank, to temporary accounts opened in other banks. In case of opening of a
temporary account in another bank, the monetary means shall be transferred to
such account via the corresponding account ‘loro’ of this bank opened in the
National Bank.
Opening
of a temporary account is not necessary in the following cases:
adoption
of a legislative act of the Republic of Belarus that provides for contributing
monetary means into the authorized fund;
increase
of the authorized fund of the bank at the expense of the sources of own means
of the bank;
increase
of the authorized bank fund at the expense of credits (loans) recognized as
subordinated in accordance with the legislation of the Republic of Belarus,
previously allocated in this bank.
Chapter 9
State Registration of Banks
Article 77. General provisions relating to state registration of banks
In accordance
with this Code and other legislative acts of the Republic of Belarus, the
following are subject to state registration:
banks
being created, including in the result of a reorganization;
changes
and/or additions introduced into the statutes of banks.
The
state registration of banks, as well as of changes and/or additions introduced
into statutes of banks, is carried out by the National Bank.
Peculiarities
of state registration of banks, created in the result of reorganization, and
state registration of changes and/or additions introduced into the statute
documents of a bank in relation to its reorganization are established by the
National Bank.
Article 78. [Excluded]
Article 79. Procedure for submission of documents necessary for state
registration of a bank
Prior
to submitting documents necessary for the state registration of a bank being
created, founders of the bank are obliged to:
obtain
the consent of with the National Bank for the name of the bank, in the order
established by the National Bank;
determine
the supposed location of the bank (location of its permanently acting executive
body);
adopt
the decision on creation of the bank and approve its statute;
approve
the candidates for the positions of the head and chief accountant of the bank;
form
the authorized fund of the bank in full.
Acceptance
of documents necessary for the state registration of a bank is carried out in
the National Bank in the presence of its founders (natural persons,
representatives of legal persons). The founders
of a bank are entitled to authorize one of the founders to represent their
interests before the National Bank. In doing so,
the founder – natural persons shall produce the identity documents, and a
natural person authorized by the founders of the bank and representatives of
legal persons shall produce, in addition to their identity documents, documents
confirming their powers.
Article 80. Documents necessary for state registration
For the state
registration of a bank being created, the following documents are to be
presented to the National Bank:
application
for the state registration of the bank being created according to the form
established by the National Bank;
statute
of the bank in two copies and its electronic version;
contract on
creation of the bank;
protocol
of the constituent meeting which besides the data provided by the legislation
of the Republic of Belarus shall contain the data about the candidates to the
positions of the head and the chief accountant of the bank;
documents
confirming the formation of the bank’s authorized fund in full (statement of
temporary account, expert opinion concerning the credibility of the property
value appraisal in the case of a contribution to the authorized fund in kind
and/or other documents in accordance with legislation of the Republic of
Belarus);
copies
of constituent documents and certificates of state registration of the founders
– legal persons (legalized extract from the commercial register of
the country of its foundation or another equivalent proof of the legal status
of the organization in accordance with the legislation of the country of its
establishment (the extract shall be dated not earlier than one year before the
date of submission of the application for the state registration of the bank) with translation into Belarusian or Russian (the
authenticity of the signature of the interpreter must be certified by a notary)
– for founders, being foreign organizations, and also auditors’ reports
containing data about the fact that the founders – legal persons have own means
for the contribution to the authorized fund of the bank, from the founders;
document
certifying the bank’s right to be situated at its location (location of its
permanent executive body) specified in the statute of the bank;
copies
of the identity documents of founders – natural persons (for founders being
foreign natural persons, – legalized not later than one year from the date of
submission of the application for the state registration of the bank with
translation into Belarusian or Russian (the authenticity of the signature of an
interpreter shall be certified by a notary));
list
of founders with indication of the amount of their contribution, number,
categories and nominal cost of shares subject to distribution among the
founders, as well as of stakes of such shares in the authorized fund of the
bank according to the form determined by the National Bank;
data
on supposed beneficiary proprietors of the bank, each of which shall posses at
least five percent of bank shares, according to the form determined by the
National Bank;
transfer
act or dividing balance sheet, containing provisions on the succession on
obligations of the reorganized legal person (for a bank created in the result
of an reorganization);
payment
document confirming the payment of the state duty for the state registration of
the bank.
The
founders being foreign organizations additionally submit a written permit of
the authorized body of the country of their establishment for the participation
in the creation of he bank with foreign investments in the territory of the
Republic of Belarus, in the case if such permit is required according to the
legislation of the country of their establishment.
The
National Bank, not later than one working day following the day of receipt of
the documents, specified in part one of this Article, issues to the bank
founders (their representatives), provided such documents, a written confirmation
of their receipt.
Article 81. Making decisions on state registration of bank
The
decision on state registration of a bank or on denial of its registration shall
be taken by the Board of the National Bank within the period not exceeding two
months from the date of submission of the documents required for the state
registration of the bank, with the exception of for the case provided by part
eight of Article 95 of this Code.
Prior
to making the decision on state registration of a bank, the National Bank
verifies the statute of the bank for compliance with the requirements of the
legislation of the Republic of Belarus, as well as for the compliance of
monetary means and other property, being contributed to the authorized fund of
the bank with the requirements provided by Article 75 of this Code.
The
National Bank, prior to taking the decision on state registration of a bank, is
entitled to request from state bodies and other organizations additional data
about the founders of the bank being registered, on the sources of their
monetary means and other property being contributed to the authorized fund of
the bank, necessary for considering the issue of compliance with the
legislation of the Republic of Belarus while the bank is being established.
In
the event of taking the decision on the state registration of a bank, the
National Bank shall, within the period o five days, submit to the Ministry of
Justice of the Republic of Belarus all the necessary data about this bank to
include it into the United State Register of Legal Persons and Individual
Entrepreneurs.
On
the basis of the decision on the state registration of a bank, the National
Bank shall, within five working days from the day of entering the record on the
state registration of the bank into the United State Register of Legal Persons
and Individual Entrepreneurs, hand out:
certificate
on state registration of the bank;
documents
confirming the putting on record in tax bodies, bodies of state statistics,
bodies of the Fund of Social Protection of Population of the Ministry of Labor
and Social Protection of the Republic of Belarus, registration in the
organization carrying out obligatory insurance against accidents in the
workplace and occupational diseases.
The
information on the location of a bank (location of its permanently acting
executive body) and its name shall be published on the official site of the
National Bank in the global computer network Internet.
Article 82. Reasons for denial of state registration of banks
The state registration
of a bank is not allowed if:
not
all required documents were submitted for the state registration of the bank;
documents
submitted for the state registration of the bank contain false data;
statute
of the bank and/or other documents submitted for its state registration do not
comply with the legislation of the Republic of Belarus;
for
the moment of state registration performance, the authorized fund of the bank
has not been formed in full;
facts
of the use of monetary means or other property, not being own means of the
founders of the bank, and/or profits received from criminal activities when the
authorized fund of the bank was formed have been established;
bank
being created in the result of reorganization does not comply with license
requirements established by this Code;
at
least one of the bank founders or one of its supposed beneficiary owners who
will posses at least five percent of bank shares:
has
non-cleared or non-expunged record of conviction for crimes against property and
the order of carrying out economic activity.
is
a public association pursuing political objectives;
does
not comply with requirements, established by the National Bank.
In the event
of taking the decision about the denial of state registration of the bank, the
National Bank shall notify the bank founders in writing within five-day period
with indication of reasons for the denial.
The decision
about the denial of state registration of the bank or the failure of the
National Bank to take decisions about its state registration within the
established time-limit may be appealed against in the order established by the
legislation of the Republic of Belarus.
Article 83. Actions of a bank after its state registration
A
bank, with the exception of the case provided by part eight of Article 95 of
this Code, within ten months from the day of its state registration, is obliged
to:
take
measures on fulfilling the license requirements, based on the list of bank
operations, which bank intends to perform;
approach
the National Bank for obtaining the license to carry out banking activities in
accordance with Articles 94 and 95 of this Code.
In
the event of failure of the bank to obtain the license to carry out banking
activities within twelve months from the day of its state registration, such a
bank is subject to liquidation in the order provided by the legislation of the
Republic of Belarus, on the decision of shareholders of the bank or a body of
the bank authorized for such actions by the statute of the bank, or of the economic
court upon the claim of the National Bank.
Prior
to obtaining the license the bank is not entitled to:
carry
out banking operations and other activities, with the exception of the cases
when such activities are carried out to fullfill the license requirements;
establish
affiliates, representative offices, structural divisions and remote workplaces;
act
as founder (participant) of other legal persons.
Prior
to obtaining the license to carry out banking activities, requirements of
Articles 109 and 110 – 119 of this Code are not applied to the bank, unless
otherwise provided by the National Bank.
Article 84. State registration of changes and/or additions
introduced into the statute of a bank
For the state
registration of changes and additions introduced into the statue of a bank, the
bank is obliged to submit to the National Bank within thirty day period from
the day of relevant decision the following documents:
application
for the state registration of changes and/or additions introduced into the
statute of the bank according to the form established by the National Bank;
extract
from the minutes of the general meeting of bank’s shareholders on introducing
changes and additions into its statute;
changes
and/or additions being introduced into the statute of the bank and their
electronic copy;
two
copies of the bank’s statute in the new wording and its electronic copy;
payment
document confirming the payment of the state duty for state registration of changes
and additions being introduced into the statute documents of the bank.
For
the state registration of changes/or additions introduced into the statute of a
bank concerning changes in its name, alongside with the documents specified in
part one of this Article, the bank shall additionally submit the original
certificate on its state registration. The
new name of the bank shall be previously agreed with the National Bank.
For
the state registration of changes introduced into the statute of the bank concerning
the change of the amount of the authorized fund, the bank shall, alongside with
the documents specified in part one of this Article, additionally submit to the
National Bank:
list
of shareholders of the bank with indication of the changed number and category
of shares belonging to them and the percentage of such shares in the authorized
fund of the bank, the amount of their additional contributions being made into
the authorized fund of the bank according to the form determined by the
National Bank;
copy
of the document confirming the state registration of the previous issue of
shares in the authorized republican body of state administration that carries
out the state regulation of the securities market;
in
the event of increasing the authorized fund of the bank – documents confirming
its increase (statement of temporary account, expert opinion
concerning the credibility of the property value appraisal in the case of a
contribution to the authorized fund in kind and/or other documents in
accordance with legislation of the Republic of Belarus).
For
the state registration of changes and/or additions introduced into the statute
of the bank relating to its reorganization, the bank shall, alongside the documents
specified in part one of this Article, additionally submit to the National Bank
a transfer act or a dividing balance sheet.
The
National Bank shall, before taking a decision on state registration of changes
and/or additions introduced into the statute of the bank, verify their
compliance with the requirements of the legislations of the Republic of
Belarus, and in case of making additional contributions into the authorized
fund of a bank – also the compliance of monetary means and other property contributed
to the authorized fund of the bank with the requirements provided by Article 75
of this Code.
The
National Bank is entitled, before taking a decision on state registration of
changes and/or additions to the statute of the bank, to request additional data
from state bodies and other organizations on new shareholders of the bank,
sources of monetary means and other property contributed to the authorized fund
of the bank, necessary for considering the issue of
compliance with the legislation of the Republic of Belarus while the changes and/or additions have been introduced into the
statute of the bank.
Prior
to making a decision on state registration of changes and/or additions
introduced into the statute of the bank concerning the change of its location,
the National Bank is entitled to verify the existence of technical abilities of
the bank to carry out banking operations at the new location.
The decision
on the state registration of changes and/or additions introduced into the
statute of a bank or on denial in their registration are to be taken by the
National Bank within a period not exceeding two months from the day of
submission of documents necessary for their state registration.
On the basis
of the decision of the state registration of changes and/or additions
introduced into the statute of the bank, the National Bank submits, within five
days, to the Ministry of Justice of the Republic of Belarus necessary data
about the bank to be included in the Unified State Register of Legal Persons
and Individual Entrepreneurs.
Information
on the change of location of a bank (location of its permanently acting
executive body) or of its name are to be published on the official site of the
National Bank in the global computer network Internet.
The
state registration of changes and/or additions introduced into the statute of a
bank is not allowed if:
not
all required documents were submitted for the state registration changes and/or
additions introduced into the statute of the bank;
false data
has been detected in documents submitted for the state registration of changes
and/or additions introduced into the statute of the bank;
documents
submitted for the state registration of changes and/or additions introduced
into the statute of the bank do not comply with the legislation of the Republic
of Belarus;
acts of the
use of monetary means or other property, not being own means of the founders of
the bank, and/or provided by the bank itself, and/or provided to the bank by
other persons in the case if the bank accepted the risks arising in relation to
provision to the bank of such monetary means and other property, and/or profits
received from criminal activities;
In the event
of taking the decision about the denial of state registration of changes and
additions introduced into the statute of a bank, the National Bank shall notify
the bank in writing within five-day period from the day of taking such decision
with indication of reasons for the denial.
The decision
about the denial of state registration of changes and additions introduced into
the statute of a bank or the failure of the National Bank to take decisions
about the state registration of changes and additions introduced into the
statute of a bank within the established time-limit may be appealed against in the
order established by the legislation of the Republic of Belarus.
chapter 10
separate and structural divisions of a bank
Article 85. Bank Affiliate (Branch)
An affiliate
(branch) of a bank is its separate division located off the location of the
bank, which carries out, on its behalf, all or a part of banking operations
stipulated by a license to carry out banking activities. In
the case of location of the premises of a bank affiliate at several addresses,
the location of bank affiliate is determined on the location of its head.
An affiliate
(branch) of the bank is not a legal person and carries out its activity on the
basis of regulations approved by its founding bank. Regulations
on an affiliate (branch) of a bank must comply with the provisions of the legislation
of the Republic of Belarus and the statute of the bank.
The list of
affiliates (branches) of a bank are appended to the bank statute.
The property
of an affiliate (branch) of a bank are formed by transferring a portion of the
bank's property thereto.
The name of
an affiliate (branch) of a bank shall carry an indication that it is an
affiliate (branch) of its founding bank.
The affiliate
(branch) head is appointed by the head of the bank that has established the
affiliate (branch), unless otherwise stipulated by the bank statute, and acts
on the basis of a power of attorney issued in the established order.
The state
registration of changes and/or additions introduced into the statute of a bank
concerning the change in the attached list of bank affiliates shall be carried
out in the order established by Article 84 of this Code.
The
technical capabilities of a bank affiliate shall comply with the requirements
established by the legislation of the Republic of Belarus to the technical capabilities
for carrying out banking operations by the affiliate.
Article 86. [Excluded]
Article 87. Carrying out banking operations and other
activities by a bank outside the location of the bank, bank affiliate
A
bank is entitled to carry out banking operations and/or other activities
outside the location of the bank, bank affiliate by means of establishment of
structural divisions, including mobile ones, placed outside the location of the
bank, bank affiliate and other structural divisions not having an independent
balance sheet (branches, centers of banking services, settlement
and cash centers, exchange offices and other
structural division), or by means of establishment of remote workplaces. Technical capabilities of such structural divisions and remote
workplaces must comply with the with
the requirements established by the legislation of the Republic of Belarus to
the technical capabilities for carrying out respective banking operations,
normative requirements to ensure personal safety of employees and customers,
and other requirements ensuring the safety of carrying out banking operations.
The
bank must notify the National Bank on the establishment, change of a location
and closing of such structural divisions and remote workplaces in the order and
within the time-limits established by the National Bank.
Article 88. Bank’s representative office
The
representative office of a bank is its separate division situated off the place
of location of the bank that represents and protects its interests.
The list of
bank representative offices is to be appended to the bank statute
A
representative office of a bank is not a legal person and carries out its
activities on the basis of regulations approved by its founding bank.
A
representative office of a bank may not perform banking operations and other
activities stipulated by Article 14 of this Code with the exception of
protecting and representing the interests of its founding bank including
through providing counseling and information services.
The name of a
representative office of a bank shall carry an indication that it is a
representative office of its founding bank.
Heads of
representative offices are appointed by the head of the bank that has
established those representative offices, unless otherwise stipulated by the
bank statute, and act on the basis of a power of attorney issued to them in the
established order.
The state
registration of changes and/or additions introduced into the statute of a bank
concerning the change in the attached list of representative offices of the
bank shall be carried out in the order established by Article 84 of this Code.
chapter 11
specific featurs of establishment of a bank with foreign investments. Representative
Office of a Foreign Bank in the territory of the Republic of Belarus. Specific features
of establishment of Subsidiary Banks, of Opening Affiliates and Representative
Offices of Resident Banks outside the republic of belarus PARTICIPATION OF
BANKS-RESIDENTS IN authorized FUNDS OF FOREIGN BANKS
Article 89. [excluded]
Article 90. Additional requirements to establishment and
activity of banks with foreign investments in the territory of the Republic of
Belarus
The amount
(quota) of foreign capital participation in the banking system of the Republic
of Belarus is established by the National Bank as agreed with the President of
the Republic of Belarus. The
said quota is calculated as a ratio of the total capital belonging to
non-residents in the authorized funds of banks with foreign investments to the
aggregate authorized fund of banks registered in the Republic of Belarus.
The
National Bank shall cease state registration of banks with foreign investments
Once the established amount (quota) of foreign capital participation in the
banking system of the Republic of Belarus is reached.
In
case of the increase of the authorized fund of a bank at the expense of means
of non-residents and/or alienation by the bank and/or a shareholder-resident of
shares of the bank in favor of non-residents, the purchaser of bank’s shares
being non-resident, or a resident intending to conclude a relevant transaction,
is obliged to obtain in advance a permission of the National Bank.
An
application for a permission is considered by the National Bank within thirty
days in the established order.
Transactions
involving alienation of shares of banks by residents in favour of non-residents
that have been performed without permission of the National Bank are invalid.
The National
Bank is entitled to prohibit increase of the authorized fund of a bank with
foreign investments at the expense of means of non-residents and/or alienation
of shares in favour of non-residents if, as a result of such actions, the rate
(quota) of foreign capital participation in the banking system of the Republic
of Belarus will be exceeded.
The
Government of the Republic of Belarus, on the proposal of the National Bank, is
entitled to impose restrictions on banks with foreign investments on carrying
out banking operations if similar restrictions are applied with regard to
activities of banks with investments of citizens of the Republic of Belarus
and/or legal persons of the Republic of Belarus in respective foreign states.
Article 91. Representative office of a foreign bank
A
foreign bank is entitled to establish in the territory of the Republic of
Belarus representative offices in the order established by the National Bank.
A
representative office of a foreign bank is not a legal person and carries out
its activity on the basis of regulations approved by the bank that has
established it.
A
representative office of a foreign bank has no right to carry out banking
operations and other activities stipulated by Article 14 of this Code, with the
exception of protecting and representing the interests of the bank that has
established it, including by providing counseling and/or information services.
Article 92. Specific features of establishing subsidiary banks, opening
affiliates, and representative offices of banks-residents outside the Republic
of Belarus. Participation of banks-residents in authorized funds of foreign banks
Resident
banks may establish subsidiary banks and open affiliates outside the Republic
of Belarus, as well as to participate in authorized funds of foreign banks only
with permission of the National Bank.
Representative
office of resident banks outside the Republic of Belarus may be opened only
after prior notification to the National Bank.
To obtain
permission for establishing subsidiary banks, opening affiliates of a
resident-bank outside the Republic of Belarus or for participation of a
resident bank in the authorized fund of a foreign bank, the following shall be
submitted to the National bank:
application;
resolution of
the authorized body of the bank on establishing a subsidiary bank or opening an
affiliate of the resident bank outside the Republic of Belarus or on the
participation of the resident bank in the authorized fund of a foreign bank;
feasibility
study of establishing a subsidiary bank, opening an affiliate of the resident
bank outside the Republic of Belarus or for participation of the resident bank
in the authorized fund of a foreign bank;
documents
that determine the legal status of a subsidiary bank or affiliate of the
resident bank outside the Republic of Belarus or documents confirming the legal
status of the foreign bank for participation in which the permission in applied
for.
Decisions on
granting permission to establish a subsidiary bank or to open an affiliate of a
resident bank outside the Republic of Belarus abroad as well as to participate
in the authorized fund of a foreign bank or on denial of such permission must
be made within thirty days from the date of submission of the documents
specified in part three of this Article. The
National Bank shall notify the bank of its decision in writing within five days
from the date of the decision.
The grounds
for denial of permission to establish a subsidiary bank, to open an affiliate
of a resident bank outside the Republic of Belarus or for participation of a
resident bank in the authorized fund of a foreign bank are:
the
bank has been incurring losses on the first day of the month in which a bank
applied to the National Bank for the issuance of the permission, or the
availability of the accurate information about the loss of the bank on the day
of decision-taking;
existence
of facts of non-fulfillment by the bank of standards of safe functioning and/or
other requirements established by Chapter 15 of this Code within last three
months prior to the day of applying to the National bank for the issuance of
the permission;
existence
of obstacles for carrying out by the National Bank of bank supervision on a
consolidated basis;
other
grounds provided for by the treaties of the Republic of Belarus.
Denial of
granting permission to establish a subsidiary bank, to open an affiliate of a
resident bank outside the Republic of Belarus or for participation of a
resident bank in the authorized fund of a foreign bank or failure by the
National Bank to take a decision within the period of time stipulated by this
Article may be appealed to the economic court.
Chapter 12
Licensing of Banking Activities
Article 93. General dispositions on licensing of banking activities
Licenses for
carrying out banking operations are issued by the National Bank in the order
stipulated in this Code and normative legal acts of the National Bank adopted
in accordance with the Code.
A bank
acquires the right to carry out banking activities from the date of obtaining a
license to carry out banking activities.
Licenses
issued by the National Bank are recorded in the register of licenses to carry
out banking activity. In the event
of revocation, suspension, or revalidation of a license carry out banking
activity, including concerning performance of some banking operations, a proper
entry is to be made in the said register.
The register
of licenses to carry out banking activity shall be placed on the official site
of the National Bank in the global computer network Internet. Changes
and additions introduced in the said register shall be placed on the mentioned
site with five-day period from the day of their entering into the register.
A license to
carry out banking activity shall specify banking operations which the bank is
entitled to perform.
Article 94. Licensing requirements for obtaining a license
to carry out banking activities
The
licensing requirements for obtaining a license to carry out banking activities
are:
the
bank dispose of a normative capital of not less than a minimum amount established
by the National Bank;
the
bank has a business plan (strategic plan of bank development) complying with
the requirements established by the National Bank;
the
bank has the Board of Directors (Supervisory Board) and executive organ,
compliance of the composition of the Board of Directors (Supervisory Board)
with the requirements established by the National Bank;
members
of the Board of Directors (Supervisory Board), with the exception of a
representative of a state, and members of a collegiate executive body (in case
of its establishment), as well as the head and the chief accountant of the
bank, their deputies meet the qualification requirements and/or requirements to
the business reputation, established for them;
the
bank has a system of risk management and internal control system, complying
with the requirements established by the National Bank;
the
bank meets the requirements for technical capabilities to conduct banking
activities, established by the legislation of the Republic of Belarus;
the
organizational structure of the bank meets the requirements established by this
Code, as well as transparency of the structure of its property. Criteria of the
evaluation of the transparency of the structure of the bank property are
established by the National Bank.
For
the banks entitled to carry out banking operations on attraction of monetary
means from natural persons, not being individual entrepreneurs, in accounts
and/or deposits, on opening and operation of bank accounts of such natural persons
or applying to obtain such a right, the licensing requirements, besides those
listed in the part one of this Article, are:
the
bank has a normative capital in the amount established by the National bank, or
in twofold amount in case if from the moment when the bank obtained the license
to carry out banking activities less than two years passed;
stable
financial standing of the bank within last two years or from the moment when
the bank obtained the license to carry out banking activities in case if from
the moment of obtaining of such a license less than two years passed. Criteria of stable
financial standing of a bank and the order of its evaluation are established by
the National Bank.
The
Bank is obliged to meet constantly licensing requirements.
Article 95. Procedure for obtaining license to carry out banking
activities and introducing changes and/or additions into the license
In
order to receive a license to carry out banking activities, the following
documents shall be submitted to the National Bank:
application
according to the form established by the National Bank;
data
on members of the board of directors (supervising board), collegiate executive
body (in case of its establishment), head and chief accountant of a bank, their
deputies, officials, responsible for risk management, officials responsible for
the internal control in a bank, head of the internal audit service, appointed
(elected) on the moment of submission of the application, according to the form
established by the National Bank;
local
normative legal acts of the bank, regulating organization of the system of risk
management, internal control system and activity of the bank’s internal audit
service;
business plan
of the bank;
calculation
of the normative capital of the bank according to the
form established by the National Bank;
data on
beneficiary owners of the bank being as such with regard to at least five
percent of bank shares, according to the form established by the National Bank;
payment
document confirming the payment of the state duty for the issue of the licence.
Changes
and/or additions to the list of banking operations specified in the license to
carry out banking activities issued to a bank are introduced:
on the
petition of the bank when it meets the licensing requirements;
on the
initiative of the National Bank in the case of changes in the legislation of
the Republic of Belarus, and also in the cases provided for by Articles 97, 1011,
134 и 1341 of this Code.
Documents
submitted by a bank for introducing changes and/or additions into the list of
banking operations specified in the license to carry out banking activities
issued to the bank, as well as the procedure of their submission and
consideration are established by the National Bank.
Decision
on issuance (denial to issue) a license to a bank to carry out banking
activities, introduction (denial to introduce) of changes and/or additions to
the list of banking operations, provided in the license to carry out banking
activities issued to a bank shall be taken by the National Bank within the
time-limit not exceeding two months from the day of submission to the National
bank of documents necessary to obtain a license to carry out banking
activities, introduction of changes and/or additions into the list of banking
operation specified in such a license.
Prior
to taking the decision on issuance of the license to carry out banking
activities to a bank, introduction of changes and/or additions into the list of
banking operations specified in the license to carry out banking activities
issued to the bank, the National bank is entitled to conduct an inspection of
the compliance of the bank with the licensing requirements established by this
Code for carrying out banking operations indicated in the application for the
license, and/or request from the applicant additional documents confirming
compliance with such licensing requirements.
The
license to carry out banking activities shall be issued to the bank within five
working days from the day when the National Bank has taken such decision.
On
the basis of the decision on introduction of changes and/or additions into the
list of banking operations specified in the license to carry
out banking activities issued to the bank, the
National bank, within five days from the date of adoption of such decision,
issues the license to the bank, formalized on a new blank form with indication
of the list of banking operations which the bank is entitled to carry out. Simultaneously the bank must return to the National Bank the license to
carry out banking activities (its duplicate) issued earlier.
Founders
of a bank are entitled to apply to the National bank for the license to carry
out banking activities simultaneously with submission of a petition on the state
registration of the bank subject to meeting licensing requirements established
by this Code. In this case simultaneously with the documents necessary for the state
registration of the bank, documents provided by part one of this Article to
obtain a license to carry out banking activities must be submitted. In this instance the
time-limit for to taking the decision on issuance of the license to carry out
banking activities to the bank may be extended by the National Bank up to three
months. Upon availability of the
grounds for denial to issue the license to carry out banking activities,
provided by part one of Article 96 of this Code, the National Bank carries out
the state registration of the bank without issuance of such license in the
order established by Charter 9 of this Code.
This
Article does not apply to the case of revocation by the National bank of a
license to carry out banking activities in the part of carrying out certain
banking operations, provided for by part two of Article 99 of this Code.
Article 96. Grounds for denial of issuing license to carry out banking
activities or of introducing changes and additions into license
The
National Bank is entitled to deny the issuance of the license to carry out
banking activities in case if:
not all documents
provided by Article 95 of this Code, required
to obtain the license to carry out banking activities, are submitted;
documents
submitted to obtain the license to carry out banking activities contain false
data;
the
bank does not comply with licensing requirements established by this Code.
Grounds for
denial of introducing changes and/or additions into the list of banking
operations specified in the license to carry out banking activities are
established by the National Bank.
Article 97. Grounds for suspension, reinstatement of license to carry
out banking activities and its revocation
The National
Bank is entitled to suspend a license to carry out banking activities in the
part of performance of certain banking operations for a term necessary for the
elimination of violations detected in activities of a bank, but not exceeding
one year, in the case of:
non-compliance
with prescriptions of the National Bank;
non-compliance
with standards of safe functioning and/or other requirements established by
Chapter 15 of this Code;
non-submission,
late submission, submission of incomplete and/or false reports, as well as
other information obligatory for submission to the National Bank in accordance
with this Code and other legislation of the Republic of Belarus, and/or
violation of the order of its submission;
creation
of such financial standing of the bank which can entail threat to stability of
the banking system of the Republic of Belarus and/or interests of depositors
and other creditors of the bank;
incompliance
with licensing requirements established by this Code;
other
violations of banking legislation requirements.
The National
Bank reinstates the suspended license to carry out banking activities in the
part of performance of certain banking operations when the bank submits a
petition containing information on the elimination of violations detected in
its activities, which entailed the suspension the validity of the license. When
necessary, the National Bank is entitled to carry out an inspection of the
accuracy of the information on the elimination of violations, submitted by the
bank.
In the case
when the detected violations have not been eliminated within the period
established by the National Bank, the National Bank is entitled to suspend the
license to carry out banking activities for a new period or to revoke it,
including in the part of performance of certain banking operations.
The National
Bank is also entitled to revoke the license to carry out banking activities,
including in the part of performance of certain banking operations, in the case
of:
incompliance
with licensing requirements established by this Code if it could lead to a
threat to stability of the banking system of the Republic of Belarus and/or interests
of depositors and other creditors of the bank;
a fact of
false data submission is detected on the basis of which the license to carry
out banking activities was issued or changes and additions into the list of
banking operations specified in it were introduced
non-performance
of banking operations specified in the issued license to carry out banking
activities within a period of one year;
established
fact of inaccurate data contained in reports which could lead to a threat to
stability of the banking system of the Republic of Belarus and/or interests of
depositors and other creditors of the bank;
repeated (not
less than twice) violations, within one year, of requirements established by
the National Bank for the manner and deadlines of reports submission;
performance,
including a single case, of banking operations which are not specified in the
issued license to carry out banking activities;
violations of
other requirements of banking legislation if, within a year, measures of
influence established by this Code were repeatedly (not less than twice)
imposed on the bank;
creation of
such financial standing of the bank which has entailed the non-fulfillment of
its obligations before depositors and other creditors;
presence of
grounds for recognizing the bank bankrupt in accordance with legislative acts
of the Republic of Belarus;
reorganization
of the bank by the way of its merger and affiliation (for the affiliated bank),
or splitting-up or transformation in a non-bank credit and financial
organization (introduction of corresponding changes into the bank statute);
taking
decision of the bank liquidation.
In the case
of elimination of violations with regard to which the license to carry out
banking activities in the part of performance of certain banking operations has
been revoked, the bank is entitled to make a petition to the National bank on
introducing changes and/or additions in the list of banking operations
specified in the license to carry out banking activities issued to it. When
necessary, the National Bank is entitled to carry out an inspection of the
accuracy of the information on the elimination of violations, submitted by the
bank.
Article 98. Suspension and reinstatement of license to carry out
banking activities
The decision
of the National Bank on suspension and reinstatement of a license to carry out
banking activities in the part of performance of certain banking operations
enters into force from the moment of notification of the bank about the
decision.
The
notification about the suspension and reinstatement of the license to carry out
banking activities in the part of performance of certain banking operations is
subject to publication by the National Bank in republican printed mass media
being official editions and on the official site of the National
Bank in the global computer network Internet within 5
days from the date of the respective decision.
In case of
suspension of the license to carry out banking activities in the part of
performance of certain banking operations, obligations of the parties relative
to the performance of those operations are terminated through the fulfillment
by parties of theirs obligations under a respective contract. In this instance, it is prohibited for the bank to conclude new
contracts and to renegotiate already concluded contracts for a new term the
fulfillment of obligation under which is related to the performance of a
banking operation in part of which the license to carry out banking activities
has been suspended, unless otherwise provided in the decision of the National
Bank on suspension of the license to carry out banking activities.
Article 99. Revocation of licenses to carry out banking activities and
consequences thereof
The decision
of the National Bank on revocation of a license to carry out banking
activities, including in the part of performance of certain banking operations,
enters into force from the moment of notification of the bank about the
decision.
On
the basis of the decision on revocation of the license to carry out banking
activities in the part of performance of certain banking operations, the
National Bank issues a license formalized on a new blank form with the list of
banking operations which bank is entitled to carry out. Simultaneously the bank must return
to the National Bank the license to carry out banking activities (its
duplicate) issued earlier.
The
notification about the revocation of the license to carry out banking
activities, including in the part of performance of certain banking operations
is subject to publication by the National Bank in republican printed mass media
being official editions and on the official site of the National Bank in the
global computer network Internet within 5 days from the date of the respective
decision.
In case of
revocation of the license to carry out banking activities in the part of
performance of certain banking operations, obligations relative to the
performance of those operations are subject to termination because of
impossibility of their fulfillment. In this
instance, the bank shall compensate depositors and other creditors for all
losses they suffered because of the impossibility of the fulfillment by the
bank of its obligations relative to the performance of certain banking
operations in the part of which the license has been revoked.
In case of
the revocation from the bank of the license to carry out banking activities in
part of performance of all banking operations specified in part one of Article
8 of this Code, when the license remains valid relative to the performance of
other banking operations, it is allowed the transformation of the bank in a
non-bank credit and financial organization (introduction of respective changes
to the bank statute).
In case of
revocation of the license to carry out banking activities and provided that the
bank has fulfilled completely its obligations before depositors and other
creditors, the bank is subject to liquidation.
From the
moment of revocation of the license to carry out banking activities:
obligations
of the bank in foreign currency are determined for in Belarusian rubles at the
official rate of the National Bank valid on the date of revocation of the
license to carry out banking activities;
the bank
bears no responsibility for the breach of its obligations because of the
impossibility of their fulfillment due to the revocation of the license to
carry out banking activities, the termination of accrual of interest, penalties
(forfeit, fines) included;
enforcement
of execution documents with respect to property recovery are suspended, except
for the enforcement of execution documents issued on the basis of court
decisions as to wage arrears recovery, payment of author's royalties and
alimony, and compensation for injury to life or health that become effective prior
to the revocation from the bank of the license to carry out banking activities;
it is
prohibited for the bank to conclude new contracts and to renegotiate for a new
term already concluded contracts, to fulfill bank obligations under those
contracts, including the performance of operations on a correspondent account
of the bank, except for the operations relative to current and operating
payments of the bank, repayment of dismissal wages and remuneration for work of
persons employed under a labor contract, within the expense budget agreed with
the National Bank, as well as to return monetary means improperly credited to
the correspondent account of the bank, prior to the establishment of a
liquidation committee (appointment of the liquidator) or the appointment of a
receiver (crisis manager) by an economic court.
Article 100. [Excluded]
Chapter 13
Reorganization and Liquidation of Banks
Article 101. Reorganization of a bank
The
reorganization of a bank by the way of its split-up or split-off of another bank
(banks) is allowed provided that the authorized fund of the bank(s) emerging as
a result of the reorganization remains within the minimum authorized fund
established by the National Bank.
A bank may
merge only with a bank(s). Once banks
have taken decision to merge, it is necessary to obtain permission from the
National Bank for their merger. The procedure
for obtaining permission is established by the National Bank.
A bank may be
reorganized by way of affiliation only to another bank. Only
a bank or a non-bank credit and financial organization may be affiliated with a
bank.
Reorganization
of a bank is carried out with notification of the creditors of the bank being
reorganized. Any creditor of the bank being
reorganized is entitled to require termination or early fulfillment of
obligation under which the bank is a debtor and compensations for losses.
When merged,
the banks are obliged to return the licenses to carry out banking activities
(their duplicates) issued to them and copies thereof to the National bank. At
that, the newly created bank is entitled to submit to the National Bank a
petition on issuance of the license to carry out banking activities specifying
the list of banking operations which the reorganized banks were entitled to
perform.
When affiliated,
the bank reorganized by the way of affiliation with another bank is obliged to
return the license to carry out banking activities (its duplicate) issued to it
and copies thereof to the National bank. The
bank reorganized by way of affiliation of another bank is entitled to submit to
the National Bank a petition on introduction of changes and/or additions to the
list of banking operations specified in the license that was issued to it to
include in the list the banking operations which the affiliated bank has been
entitled to perform.
When split
off, the reorganized bank is obliged to return the license to carry out banking
activities (its duplicate) issued to it and copies of such license to the
National Bank, and the banks being created as a result of split-off shall
submit petitions for issuance of licenses to carry out banking activities.
When
split-up, the reorganized bank is obliged to return the license to carry out
banking activities (its duplicate) issued to it and copies of such license to
the National Bank, and banks created as a result of the split-up must submit
petitions for issuance of licenses to carry out banking activities to them.
When
reorganized, the rights and duties of the bank are transferred to a created
bank(s) and other legal persons in the manner established by the civil
legislation.
Article 1011 . Peculiarities of state
registration upon reorganization of the bank
Upon
reorganization of a bank via split off, the
state registration of the created bank and, if necessary, the state
registration of changes and/or additions introduced into the statute of the
bank being reorganized shall be carried out.
Upon
reorganization of a bank via its merging, affiliating, the state registration
of the banks (bank) being created shall be carried out.
Upon
reorganization of a bank via transformation, affiliation, if necessary, the
state registration of changes and/or additions introduced into the statute of
the bank being reorganized shall be carried out.
A
bank being created in the result of reorganization shall comply with licensing
requirements established by this Code from the moment of its creation.
The
National Bank simultaneously with the decision on state registration of the
bank created in the result of reorganization takes a decision on issuance for
it of the license to carry out banking activities.
The
National Bank simultaneously with the decision on the state registration of
changes and/or additions introduced into the statute of the reorganized bank
may take a decision on introducing changes into the list of banking operations
specified in the license issued to the bank to carry out banking activities.
Article 102. Liquidation of a bank
The
termination of activities of a bank is carried out by way of its liquidation in
accordance with legislation of the Republic of Belarus and with regard to the
requirements established by this Code.
A
bank may be liquidated by decision of its participants or a body of the bank
authorized by the statute, of the economic court in cases stipulated by the
legislative acts of the Republic of Belarus. The decisions on the
liquidation of the bank may be taken by its participants or a body of the bank authorized
by the statute only after the bank has fully settled all obligations before
depositors and other creditors of the bank.
The
liquidation of a bank, on the initiative of its participants or a body of the
bank authorized by the statute, is carried out with a written consent of the
National Bank. Procedure
for obtaining such consent is established by the National Bank.
If the
National Bank refuses to grant its consent for liquidation of a bank, it shall
give grounds for its decision and to submit respectively to participants or a
body of the bank authorized by the statute a plan of actions to eliminate the
causes underlying the decision to liquidate the bank.
The
participants of the bank or a body of the bank authorized by the statute that
have taken the decision to liquidate the bank shall set up a liquidation
commission (appoint a liquidator) within ten days from the date of receipt of
the National Bank’s consent, appoint its chairman, and establish procedures and
deadlines for liquidation in accordance with legislation of the Republic of
Belarus.
The National
Bank shall, within five days, submit to the Ministry of Justice of the Republic
of Belarus data that the bank is in the process of liquidation for their entry
in the Uniform State Register of Legal Persons and Individual entrepreneurs.
The
liquidation commission (liquidator) shall assess financial standing of the bank
within thirty days of the decision on liquidation of the bank and, if the
bank's assets are insufficient to meet the claims of the creditors and/or to
pay debts to the budget and to the state non-budgetary funds, file with the
economic court an application on the bankruptcy of the bank. The
economic court carries out bankruptcy procedure in the manner stipulated by
legislation of the Republic of Belarus.
The bank is
considered liquidated from the date of the exclusion of the bank from the
Uniform State Register of Legal Persons and Individual entrepreneurs.
A
notification about the exclusion of the bank from the Uniform State Register of
Legal Persons and Individual entrepreneurs is to be published by the National
Bank in national printed mass media being official editions and in the official
edition of the National Bank within thirty days from the date of an appropriate
entry in the Register.
Article 103. Termination of activities and obligations of banks at
liquidation
The
bank is obliged to terminate its activities from the date of the decision on
its liquidation.
Persons who
have concluded a bank account contract with a bank to be liquidated are obliged
to terminate the contract unilaterally within thirty days from the date of
publication about the liquidation of the bank in national printed mass media
being official editions.
Article 104. Priority of depositors’ and creditors’ claims settlement
at bank liquidation
When a bank
is liquidated, with the exception of the case of its liquidation due to the
bankruptcy, claims of its depositors and other creditors are settled in the
following order of priority:
first,
monetary means of natural persons place on the accounts and/or deposits, and
interest accrued thereon, and also claims for compensation of harm caused to
life and health of citizens shall be compensated;
second,
arrears of alimony of expenses of the state for maintenance of children under
state protection, salaries and dismissal wages payable to the bank’s employees
are discharged;
third,
indebtedness on payments to the budget and state non-budgetary funds as well as
claims of creditors on obligations secured by property pledge shall be
compensated;
fourth,
deposits of individual entrepreneurs and legal persons and interest thereon are
repaid;
fifth, claims
of the National Bank relative to credits extended to the bank for refinancing
are satisfied;
sixth, claims
of other creditors in accordance with legislation of the Republic of Belarus
are satisfied.
Claims of
depositors and other creditors in each subsequent category are satisfied only
after claims of depositors and other creditors of the preceding category have been
completely satisfied.
Chapter 14
General Provisions about Non-bank Credit and Financial Organizations
Article 105. Organizational and legal form of non-bank credit and
financial organization
A non-bank
credit and financial organization is established as an joint-stock company and
carries out its activity in the manner established by legislation of the
Republic of Belarus, having regard to the specifics stipulated by this Code.
Article 106. Name of non-bank credit and financial organization
The name of a
non-bank credit and financial organization must indicate the nature of activity
of the organization through the use of the words "non-bank credit and
financial organization", as well as its organizational and legal form.
Legal persons
registered in the territory of the Republic of Belarus in the established order
may not use in their name the words "non-bank credit and financial
organization" or otherwise indicate that they have the right to carry out
banking activities, except for the persons that have obtained license to carry
out banking activities from the National Bank.
Article 107. State registration and licensing of non-bank credit and
financial organizations
The state
registration and licensing of activities of non-bank credit and financial
organizations are carried out by the National Bank in the order established by
this Code for banks. A non-bank credit and financial
organization may perform certain banking operations stipulated by this Code on
the basis of the license issued by the National Bank.
Minimum
size of the authorized fund of non-bank credit and financial organization as
well as the order of its formation are determined by the National Bank.
Article 108. Reorganization and liquidation of non-bank credit and
financial organizations
In case of
reorganization of a non-bank credit and financial organization through
transformation into some other commercial organization, the latter may not be
transformed into a non-bank credit and financial organization within three
years from the date of revocation of the license to carry out banking
activities.
The
transformation of a non-bank credit and financial organization into a bank
(introduction of relevant changes to the statute of the non-bank credit and
financial organization) is allowed subject to requirements stipulated by
Chapter 9 of this Code for the state registration of banks.
Liquidation
of non-bank credit and financial organizations shall be carried in accordance
with the legislation of the Republic of Belarus and with regard to the requirements
established by this Code for banks.
SECTION IV
ENSURING STABILITY OF BANKING ACTIVITIES LIABILITY OF SUBJECTS AND
PARTICIPANTS OF BANKING RELATIONS
Chapter 15
Ensuring Stability of Banking Activities Protection of Rights and Interests
OF DEPOSITORS and Other Creditors of Banks
Article 109. Ensuring financial soundness of banks
A
bank must constantly ensure its financial soundness, timely and complete
fulfillment of obligations before customers and client and contractors, carry
out the proper management of risks which arise from its activities, support
normative capital of a bank on a level sufficient to compensate risks, form
reserves to cover losses and also comply with other requirements established by
the National Bank in accordance with this Code.
The head
organization of a bank group and/or bank holding is obliged to constantly ensure its financial soundness of the
bank group and/or bank holding, to organize proper
management of risks on a consolidated basis, to ensure maintenance of normative
capital the bank group and/or bank holding on
a level sufficient to compensate risks, and also to comply with other
requirements established by the National Bank in accordance with this Code.
A
legal person capable to exert, directly or indirectly (through third persons), substantial
influence on a bank and/or non-bank credit and
financial organization, and/or other legal person recognized to be a part of a
bank holding, must not allow to exert such influence in case if it prevents the
fulfilling of requirements provided by parts one and two of this Article.
Legal
persons recognized to be as part of a bank group and/or bank holding are not
entitled to perform between them a transaction which prevents the fulfilling of
the requirements provided by parts one and two of this Article. Such a
transaction may be recognized invalid by the court on a lawsuit of the National
Bank.
A
bank is obliged to form a reserve fund to use it for covering of losses. The amount of deductions
to the reserve fund shall be at least five percent of bank’s profit, remaining
in its disposal after paying taxes, dues (duties), other obligatory payments to
the republican and local budgets, state non-budgetary fund of social protection
of the population of the Republic of Belarus and other state non-budgetary
funds, till the moment when the reserve attains the amount of at least ten
percent of the amount of the normative capital of the bank. A shareholder of the bank is entitled to contribute monetary means into
the reserve fund of the bank to cover its losses. The National Bank is
entitled to increase for a bank the amount of the reserve fund and/or the
amount of deductions to it, provided by this part, in cases and in the order
provided by Articles 134 and 1341 of this Code.
A
bank must constantly carry out the classification of its assets and operations,
not reflected in its balance sheet, according to the level of their soundness
and establish special reserves to cover possible losses on such assets and
operations, including reserves for devaluation of assets. The National bank is
entitled, on the basis of motivated reasoning, to change the classification of
assets and operations not reflected in its balance sheet, applied by a bank
according to the level of their soundness. The bank is obliged to form special
reserves to cover possible losses on assets and operations not reflected in its
balance sheet, having regard to the changes made by the National Bank to the
classification of assets and operations, not reflected in its balance sheet,
performed by the bank, according to the level of their soundness.
The bank is
obliged to observe standards of safe operation, bans, and restrictions
established in accordance with this Code, which ensure its safe and sound
operation.
Article 1091. Requirements to the organization
of corporate management of a bank, risk management and internal control
Corporate
management of a bank means a system of interaction of shareholders, governing
bodies, control bodies, officials of the bank and other interested persons,
aimed at common management of activities of the bank.
Governing
bodies of a bank are obliged to organize effective corporate management of the
bank that corresponds to the nature and volume of performed bank operations and
other activities and ensures its financial
soundness.
A
bank is obliged to undertake necessary measures to exclude the conflict of
interests and conditions of their appearance, possibility of committing crimes
and other illegal actions while carrying out its activities. Spheres and conditions of appearance the conflict of interest in
activities of a bank shall be determined by the National Bank.
The
board of directors (supervisory board) of a bank ensures the organization of a
corporate management of the bank, system of risk management and system of
internal control, exclusion of the conflict of interests in bank activities and
conditions of its appearance. Requirements to the
organization of the system of risk management and system of internal control in
a bank shall be established by the National Bank.
The
board of directors (supervisory board) shall include at least one independent
director unless another number is determined by the National Bank. The independent director may not be a part of a collegiate executive
body and/or be the head of the bank.
The
board of directors (supervisory board) of a bank establishes an audit committee
the functions of which include general management and support of the
functioning of the system of internal control, service of internal audit of the
bank, and also selection and organization of interaction with audit
organizations, auditors – individual entrepreneurs. The audit committee shall
be headed by an independent director.
A
member of the board of directors (supervisory board), with the exception of the
representative of the state in the governing bodies of the bank, the head and
the chief accountant of the bank, their deputies, members of the collegial
executive body of the Bank, as well as candidates for these positions must meet
the qualification requirements and/or requirements to the
business reputation, established for them. Assessment of compliance with such requirements shall be conducted by a
special qualification commission of the National Bank in the cases and order
established by the National Bank.
The
executive body of a bank organizes the system of risk management and internal
control system ensures that the bank fulfills the goals and objectives
established by the board of directors (supervisory board). The bank is not entitled
to delegate powers of its executive body under the contract to another
commercial organization or individual entrepreneur (manager).
The
head of a bank is a person acting as the sole executive body, or person that
chairs the collegial executive body.
The
qualification requirements are:
for
the head of a bank – higher education, working experience of at least three
years in executive positions in a bank, non-bank credit and financial
organization, international financial institutions, the National Bank and/or
the audit firm carrying out auditing in banks, non-bank credit and financial
organizations, sufficient theoretical and practical knowledge;
for a deputy
of the head of a bank, member of the collegial executive body of a bank – higher
education, working experience of at least two years in executive positions in a
bank, non-bank credit and financial organization, international financial
institutions, the National Bank and/or the audit firm carrying out auditing in
banks, non-bank credit and financial organizations, sufficient theoretical and
practical knowledge;
for
the chief accountant of a bank – higher education, special training in the
field of international financial reporting standards, work experience of at
least three years in executive positions in a bank, non-bank credit and
financial organization, and/or the National Bank in the field of accounting and
reporting, internal audit or as an auditor in an audit organization or auditor
– individual entrepreneur carrying out auditing in banks, non-bank credit and
financial organizations, sufficient theoretical and practical knowledge;
for a deputy
of the chief accountant of a bank – higher education, special training in the
field of international financial reporting standards, work experience of at
least two years in executive positions in a bank, non-bank credit and financial
organization, and/or the National Bank in the field of accounting and
reporting, internal audit or as an auditor in an audit organization or auditor
– individual entrepreneur carrying out auditing in banks, non-bank credit and
financial organizations, sufficient theoretical and practical knowledge.
Verification
of sufficiency of theoretical and practical knowledge of persons indicated in
part ten of this Article, is carried out in the form of testing and/or
interview, held in the order provided by the National Bank.
Requirements
to the business reputation are:
absence of
non-cleared or non-expunged record of conviction for crimes against property
and the order of carrying out economic activity;
absence
during the last two years of facts of termination of employment contract on the
initiative of the employer in the case when the persons referred to in part ten
of this Article committed guilty acts being the grounds for the loss of
credibility on the part of the employer;
absence
of facts, established by a court decision, of wrongful actions that entailed
the bankruptcy of a legal person.
The
National Bank is entitled to establish qualification requirements to independent
directors and/or other members of the board of directors (supervisory board) as
well as additional qualification requirements and requirements to business
reputation to the persons specified in part ten of this Article.
While
concluding a labour contract with the head, chief accountant of the bank, their
deputies, members of the collective executive body of the bank, the bank is
obliged to require and the mentioned persons – to present a document on passing
the assessment of conformity with qualification requirements, and/or
requirements to business reputation, issued by the National Bank.
A
bank is required to dismiss the head, chief accountant, their deputies, a
member of the collegial executive body of the bank in case if the document on
passing the assessment of their conformity with the qualification requirements,
and/or requirements to business reputation has become ineffective on the
grounds and in the order established by the National Bank.
The
bank is obliged to appoint an official responsible for managing risks in the
bank, and also to appoint officials and/or to establish a permanently
functioning division (divisions) on management of special types of risks in
accordance with the nature and volume of performed bank operations and other
activities. The official responsible for managing risks in the bank reports directly
to the head of the bank and is accountable to the board of directors
(supervisory board).
A
bank is obliged to appoint an official responsible for internal control in the
bank, to create a special division on preventing the legalization of profit
obtained from crime and financing of terrorist activities, and also to appoint
officials and/or to create a permanently acting division (divisions) for the
implementation of the internal control according to the nature and volume of
performed banking operations and other activities. The official responsible for internal
control in the bank reports directly to the head of the bank and is accountable
to the board of directors (supervisory board).
Accountability
of the official responsible for risk management in the bank, and the official
responsible for internal control in the bank, to the board of directors
(supervisory board) means:
appointment
and release of such persons from office with the approval of the board of
directors (supervisory board);
determination
by the board of directors (supervisory board) of the conditions of remuneration
of such persons;
regular
review by the board of directors (supervisory board) of reports of such persons.
The head
organization of a bank group and/or bank holding is obliged to organize the
system of risk management and internal control system in the bank group and/or
bank holding on a consolidated basis. Requirements to the organization of the system
of risk management and system of internal control in a bank group and/or bank
holding shall be established by the National Bank.
A
bank is obliged to establish internal audit service which is accountable in its
activity to the board of directors (supervisory board).
Accountability
of the internal audit service to the board of directors (supervisory board)
means:
approval
by the board of directors (supervisory board) of regulations on internal audit
service, changes and/or additions introduced into
it;
approval
by the board of directors (supervisory board) of the cost estimates of the
internal audit service and determination of conditions of remuneration of its
head and specialists;
appointment
of the head of internal audit service and his release from office with the
consent of the board of directors (supervisory board);
approval
by the board of directors (supervisory board) of the work plan of the internal
audit service;
regular
review and approval by the board of directors (supervisory board) of the
internal audit service reports.
A
bank shall ensure the continuity of activity of the internal audit service,
independence, objectivity and professional competence of the head and
specialists of the internal audit service, as well as unhindered access of the
internal audit service to all bank documentation as well as to conduct of an
internal audit of any division or activity direction of the bank.
The
bank sets the qualification requirements and requirements for business
reputation for heads of affiliates, structural divisions, internal audit
service, the official responsible for risk management in the bank, and the
official responsible for internal control in the bank.
The
National Bank is entitled to impose additional requirements for the
organization of corporate management of a bank.
Article 110. Required reserves fund allocated in the National Bank
Banks must
deposit a portion of attracted monetary means in the required reserves fund
allocated in the National Bank.
The required
reserves fund is used for regulating currency circulation in accordance with
the objectives and tasks of monetary and credit policy of the Republic of
Belarus and for insuring liquidity and solvency of the bank.
Article 111. Safe operation standards established for banks
With a view
of ensuring stability of the banking system of the Republic of Belarus, the
National Bank establishes the following safe operation standards for banks:
minimum size
of regulatory capital;
liquidity
standards;
regulatory
capital adequacy standards;
standards
of limitation of risk concentration;
foreign
currency risk restriction standards;
standards of
bank participation in authorized funds of other commercial organizations;
other
standards necessary to limit risks of bank activities and to ensure secure and
reliable functioning of banks.
The
National Bank determines methods to calculate the regulatory capital of a bank,
its assets, liabilities and operations not reflected in the balance sheet, for
each of standards of safe functioning, having regard to the international
standards and consultations with banks, bank unions and associations.
The
National Bank is entitled, on the basis of a reasoned judgment, to change for a
bank the value of standards of safe functioning and/or methods of calculation
of the regulatory capital of the bank, its risks, assets, liabilities and
operations that are not reflected on the balance sheet, for individual
standards of safe functioning and/or set other (additional) standards of safe functioning.
The National
Bank informs banks on forthcoming changes of safe operation standards and
methods of calculation thereof at least one month prior to putting them into
force.
The
National Bank in the order established by it, is entitled, on the basis of a
reasoned judgment and/or techniques established by it, to determine the amount
of the regulatory capital of the bank, its risks, assets, liabilities and
operations that are not reflected on the balance sheet. The bank is obliged to reflect in its books the amount of the regulatory
capital, risks, assets, liabilities and operations that are not reflected on
the balance, determined by the National Bank in accordance with the
requirements of this Article.
The National
Bank establishes safe operation standards for non-bank credit and financial
organizations depending on the list of banking operations those organizations
may carry out.
Article 112. Size of regulatory capital
The
size of the regulatory capital
is established as a sum of the authorized fund,
other funds, emission profit and undivided profits with the increase on a range
of other constituent elements of the regulatory capital of a bank, the list and
order of the calculation of which are determined by the National bank. Component
elements of the regulatory capital of a bank are determined on the ability to
cover the losses of the bank.
The
regulatory capital of the bank is decreased by the amount on which special reserves, provided by part six of Article 109 of
this Code are not created and by a number of other deductions, the list and
order of calculation of which are determined by the National Bank.
Article 113. Liquidity standards
Liquidity
standards of a bank are established as a ratio of assets, liabilities and
operations not reflected on the balance sheet, having regard to the
time-limits, sums, types of assets, liabilities, operations not reflected on
the balance sheet and also other factors determined by the National Bank.
Article 114. Regulatory capital adequacy standards
Regulatory
capital adequacy standards of a bank are established as a maximum ratio of the
size of (part of) regulatory capital to risks accepted by the bank.
Article 115. Risk concentration restriction standards
The risk concentration
restriction standards are established as a percentage of regulatory capital of
a bank.
With a view
of restriction of banks credit risks, standards of maximum exposure to a
debtor, insider (group of interconnected debtors), insider (group of interconnected
debtors), as well as standards of total of large exposures and of total of
exposures to insiders and persons interconnected with the latter, are
established.
While
determining an exposure to a debtor it shall be taken in consideration total of
credits and other monetary obligations of the debtor in relation to the bank,
as well as off-balance-sheet obligations of the bank in relation to the debtor
which envisage the fulfillment in monetary form.
A large
exposure to a debtor is considered an exposure exceeding the percentage ratio
to the regulatory capital of the bank established by the National Bank.
The National
Bank establishes differentiated standards of restriction of exposure
concentration concerning the debtors being the insiders of the bank and of
persons interconnected with them.
Interconnected
debtors are considered natural and legal persons – bank’s debtors connected
economically and/or legally in such a way that deterioration of the financial
standing of one debtor entails or makes likely the deterioration of the
financial standing another debtor (debtors). Interconnected
debtors may be understood to be persons that have property in common ownership,
mutual guarantees and/or obligations between them, that simultaneously occupy
executive positions at two or more other debtors; a legal person and a natural
person that occupies an executive position in this legal person; persons that
carry out joint activity, related through a common object of crediting and/or
investment project, with the exception of interbank crediting; spouses; persons
that have close ties of kinship or affinity; persons being in relation to each
other a legal person and a person that has the right to give instructions
binding for such a legal person or has a possibility to determine otherwise its
actions, including being parent economic company or partnership and a
subsidiary company, dependent economic companies, unitary enterprise and owner
of its property; and also other persons recognized as such on a basis of a
reasoned opinion of the bank.
Insiders are
deemed to be natural and legal persons that can influence the decision on
performing a bank operation credit constituting an exposure and/or other action
without having regard to the interests of the bank by virtue of connection with
the bank and/or a shareholder of the bank, and/or with a beneficiary owner of
the bank, and/or members of governing bodies of the bank. Insiders
may be considered to be shareholders and other beneficiary owners of the bank who posses at least five percent of bank shares,
members of governing bodies of the bank, with the exception of the general
meeting of shareholders, members of the credit council (committee), heads of
separate and structural divisions of the bank, and also other persons recognized
as such on a basis of a reasoned opinion of the bank.
To insiders
pertain also natural persons being in a marriage with, close relatives or
affinity of natural persons specified in part 7 of this Article. Natural
persons being insiders of the bank in accordance with part seven of this
Article remain considered insiders within one year from the moment of losing
connection with the bank.
The National
Bank is entitled, on the basis of a reasoned opinion and/or methodology
established by it, to assess the relationships of bank debtors between them and
also with the bank, its shareholders, beneficiary owners and/or members of
governing bodies of the bank and to recognize the mentioned persons to be
interconnected debtors and/or insiders of the bank. The
decision on recognition of such persons to be interconnected debtors and/or
insiders is taken by the National Bank in the order established by it. The bank is obliged to calculate the amount of exposure, reflect it in
its reports and also to take measures to limit it and comply with the standards
of risk concentration restriction having regard to the recognition by the
National bank of mentioned persons to be interconnected debtors and/or insiders
of the bank in accordance with the requirements of this Article.
Article 116. Standards of foreign currency risk restrictions
The National
Bank establishes standards of an open foreign currency position on foreign
currency risk as a percentage to the regulatory capital of a bank.
Article 117. Standards of bank’s participation in authorized funds of
other commercial organizations
The National
Bank establishes the following standards as a maximum percentage ration to the
regulatory capital of a bank:
standard of the
bank’s participation in the authorized fund of one commercial organization;
standard of
the total bank’s participation in authorized funds of all commercial
organizations;
standard of
the total bank’s participation in authorized funds of commercial organizations
the main activity of which is not banking and/or financial activity.
The
list of activities related to financial activities for calculation of the total
value of the bank's participation in authorized funds of commercial
organizations, as well as the procedure for determining the main activity of a
commercial organization are e established by the National Bank.
Article 118. Safe operation standards established for the purposes of
carrying out bank supervision on a consolidated basis
The National
Bank may establish for bank groups the following safe operation standards: of
liquidity, regulatory capital adequacy, risk concentration restriction,
currency risk restriction. The duty to
comply with the indicated safe operation standards is imposed on the head
organization of the bank group.
Insiders of a
bank group are deemed to be insiders of all banks, non-bank credit and
financial organizations, recognized as being part of such a bank group.
For bank holdings,
safe operation standards indicated in part one of this Article may be
established by the National Bank provided that head organizations of such
holdings are a bank or a non-bank credit and financial organization. The
duty on fulfilling the safe operation standard established by the National Bank
for a bank holding is imposed on the head organization of such a holding.
Insiders of a
bank holding are deemed to be insiders of the bank, non-bank credit and
financial organization and other legal persons not being banks or non-bank
credit and financial organizations and recognized in accordance with this Code
to be part of such a bank holding. The order for
determining persons being insiders of legal persons not being banks or non-bank
credit and financial organizations is established by the National Bank.
For
banks, non-bank credit and financial organizations being recognized as part of
a bank group and/or a bank holding, safe operation standards are established by
the National Bank having regard to risks connected with exerting by other legal
persons of substantial influence on decisions taken by governing bodies of such
banks, non-bank credit and financial organizations, and also connected with the
possibility exerting by such banks substantial influence on the decisions taken
by governing bodies of other legal persons.
The National
Bank is entitled, on the basis of a reasoned judgment, to change for a bank the
value of safe operation standards and/or methods of calculation of the
regulatory capital of the bank group, bank holding, risks, assets, liabilities
and operations that are not reflected on the balance sheet, for certain safe
operation standards and/or set other (additional) safe operation standards.
The National
Bank in the order established by it, is entitled, on the basis of a reasoned
judgment and/or methodologies established by it, to determine the amount of the
regulatory capital of a bank group, bank holding, its risks, assets,
liabilities and operations that are not reflected on the balance sheet. The
head organization of a bank group, bank holding is obliged to reflect in the
consolidated reports on activities of the bank group and/or bank holding the
amount of the regulatory capital, risks, assets, liabilities and operations
that are not reflected on the balance sheet, determined by the National Bank in
accordance with the requirements of this Article.
Article 1181. Informing the National bank
A
bank is obliged, within five working days, to inform the National Bank about:
appointment
(election), transfer and dismissal (release from office) of a member of the
board of directors (supervisory board), the collegial executive body, the head,
the chief accountant, their deputies, the official responsible for risk
management in the bank, the official responsible for internal control of the
bank, and the head of internal audit service;
facts
of inconformity of a member of the board of directors (supervisory board), the
collegial executive body, the head, the chief accountant, their deputies to the
established requirements to business reputation;
changes
in the composition of the beneficial owners being as such in respect of at
least five percent of the shares of the bank;
establishment,
change of location and closing of structural divisions, including those mobiles
and situated outside the bank’s location and not having independent balance
sheet, its subsidiary, and also of remote workplaces, carrying out banking
operations and/or other activity;
losses
(expenses) in the sum exceeding five percent of the bank's regulatory capital;
existence
of grounds for application of measures to prevent the bankruptcy of the bank,
provided by the legislation on economic insolvency (bankruptcy);
termination
of banking operations specified in the issued license to carry out banking
activities;
other
changes in its activities, organizational structure and ownership structure,
general situation, significant adverse events in the cases determined by the
National Bank.
Article 119. Reports to be submitted to the National Bank
A
bank shall draw up and submit reports on its activity to the National Bank in
the order and volume, established by the legislative acts of the Republic of
Belarus and/or National Bank.
For the
purposes of supervision of banking activities on a consolidated basis, the head
organization of a bank group and/or bank holding shall submit to the National
Bank, in the order and volume established by
it, consolidated reports on activities respectively of the bank group and/or
bank holding.
Article 1191. Information disclosure
A
bank is obliged to disclose the information on its activity by means of its
publication, placement in the premises belonging to it or on its official site
in the global computer network Internet, presentation on demand of customers and other interested
users in the amount and the order, established by the National bank.
A
bank publishes, in the amount and in the order established by the National
Bank, in the printed mass media determined by the National Bank, and places on
its official site in the global computer network Internet reports on its activities and the annual reports together
with the audit report confirming its authenticity.
The
head organization of a bank group and/or a bank holding is obliged to disclose
information on the activities of the bank group and/or a bank holding by means
of its publication, placing on its official site in the global
computer network Internet in the amount and the order
established by the National Bank.
The
head organization of a bank group and/or a bank holding publishes, in the
amount and order established by the National Bank, in printed mass media
determined by the National Bank and place on its official site in the global
computer network Internet its consolidated reports on
activities of the bank group and/or the bank holding, and also annual
consolidated reports together with the audit report confirming its
authenticity.
Article 120. Guarantees for repayment of means attracted by banks from
natural persons
The State
shall encourage and protect the savings of citizens and guarantee conditions
for the return of deposits.
To ensure
guarantees of the repayment of means attracted by banks from natural persons
and compensation for loss of income on deposited means, various forms of
guaranteeing repayment of such means may be developed in accordance with
legislation of the Republic of Belarus.
Article 121. Bank secrecy
Data on accounts
and deposits, including data on availability of an account with a bank
(non-bank credit and financial organization), account holder, account number,
and other details of the account, amounts of balances of accounts and deposits,
as well as data on particular transactions, on operations without opening an
account, operations on accounts and deposits, and property stored at the bank
constitute bank secrecy and may not be disclosed.
The National
Bank and other banks guarantee non-disclosure of bank secrecy of their
customers and correspondent banks. Employees of
the National Bank and other banks are obliged to preserve bank secrecy except
for the cases stipulated by this Code and other legislative acts of the
Republic of Belarus.
Data
constituting bank secrecy of legal persons and individual entrepreneurs are
presented by a bank to said persons and their authorized representatives, any
third persons on the basis of a written consent of such persons personally
given by them to the bank, in the volume necessary for performing the audit –
to audit organizations (auditors – individual entrepreneurs) which perform
auditing of the legal person or individual entrepreneur. In the cases provided by
the legislative acts of the Republic of Belarus, data constituting the bank
secrecy of legal persons and individual entrepreneurs are presented by the
bank:
to courts
(judges) – with respect to criminal and civil cases under their consideration,
cases pertaining to the jurisdiction of economic courts, and cases on administrative
offences, as well as with regard to execution documents;
to a public
prosecutor, or his deputy, and also, with the authorization of a public
prosecutor or his deputy, to bodies of inquiry and preliminary investigation
with respect to materials and cases under their consideration;
with
the sanction of a prosecutor or his deputy – to special units fighting against
corruption and organized crime, divisions of the bodies of internal affairs to
combat economic crime;
to bodies of the
Committee of State Control of the Republic of Belarus;
to bodies of
state securities of the Republic of Belarus;
to tax and
customs bodies;
to notaries
for execution of notarial actions;
to the
National Bank.
Banks must
submit data on accounts of central bodies of state administration, other legal
persons and individual entrepreneurs that make use of budgetary means and/or
means of state non-budgetary funds, and receiving (having received) means on
state external credits and/or other means against guarantees of the Government
of the Republic of Belarus, guarantees (sureties) of local executive and
administrative bodies to the Ministry of Finance of the Republic of Belarus and
to local financial authorities.
Data
constituting bank secrecy of natural persons, with the exception of individual
entrepreneurs, are presented by the bank to said persons and their authorized
representatives, on the basis of a written consent of such persons personally
submitted to the bank – to any third person. In
the cases provided by the legislative acts of the Republic of Belarus, data
constituting the bank secrecy of legal persons, with the exception of
individual entrepreneurs, are presented by the bank:
to courts –
with respect to criminal cases under their consideration in connection with
which, in accordance with the law, property could be confiscated and/or other
material punishment may be imposed, and with respect to civil suits considered
within criminal proceedings, as well as with respect to cases on administrative
offences;
to courts –
with respect to civil cases under their consideration and cases put under
jurisdiction of economic courts, and on execution documents;
to a public
prosecutor, or his deputy, and also, with the authorization of a public
prosecutor or his deputy, to bodies of inquiry and preliminary investigation
with respect to materials and cases under their consideration;
to Department
of Financial Monitoring of the Committee of State Control of the Republic of
Belarus;
to notaries
for execution of notarial actions;
to the
National Bank;
to
the organization that carries out the guaranteed compensation of bank deposits
of natural persons.
In case of
the death of an account holder or depositor, statement on balances of his
accounts and/or deposits and/or property stored in the bank is furnished by a
bank to persons designated by the account holder or depositor in a testamentary
disposition, to notaries – with respect to probation cases under their
consideration, and to foreign consular offices – with respect to accounts of
foreign citizens.
Data
constituting the bank secrecy of natural or legal persons are provided by the
bank to persons not indicated in this Article in other cases, if it is
stipulated by the legislative acts of the Republic of Belarus.
Data
constituting bank secrecy are provided by a bank on the basis of a written
request signed by the head of the state body or by an authorized official,
authenticated with the official seal and containing references to the
provisions of the legislative acts of the Republic of Belarus that give the
state body the right to receive such data.
Persons that
have received data constituting bank secrecy in accordance with this Article
may not disclose it without consent of the account holder and/or depositor or
property depositor, except for cases stipulated by legislative acts of the
Republic of Belarus, are subject to responsibility for the disclosure of this
data in accordance with legislation of the Republic of Belarus.
Article 122. Restrictions of banks activities and their participation
in authorized funds of other legal persons
Banks are not
entitled to provide:
credits to
the Government of the Republic of Belarus;
favorable
terms and conditions to insiders and workers of the bank, the National Bank, when
carrying out banking operations.
For the
purposes of this Article, favorable terms and conditions mean:
conclusion
with persons specified in indent three of part one of this Article or in their
interest of such a transaction which, with regard to its substance and/or
condition(s) the bank did not conclude and/or does not conclude with other
customers;
charging
persons specified in indent three of part one of this Article remuneration
and/or fee for performance of a bank operation in an lower amount than the
remuneration and/or fee for performance of that bank operation charged on other
customers of the bank.
Transactions
with favorable terms and conditions concluded with persons specified in indent
three of part one of this Article are void.
The
head and the chief accountant of a bank, their deputies, member of a collegial
executive body of a bank, the head of a separate and structural division of a
bank are not entitled to occupy positions in other commercial organizations
whose main activity is a banking and/or financial activity and/or which are
insiders of this bank.
Banks is not
entitled to reduce the size of their authorized fund without prior written
consent of the National Bank.
Participation
of a bank in the authorized fund of a legal person, in the cases established by
the National bank, is allowed only after obtaining a permission of the National
Bank. The permission is issued by the National Bank on the results of the
analysis of financial standing of this bank, possibility of management of the
acquired shares (parts), influence on its activity and risks of persons, in the
authorized funds of which the bank participates.
The
founders of a bank have no right to retire from shareholders of the bank within
first three years from the day of its state registration unless otherwise
provided by this Code.
Article 123. Requirements to the head of a bank, his
deputies, members of bank’s collegiate executive body and other persons when
bank’s shares are acquired
The
head of a bank, his deputies and members
of the bank’s collegiate executive body are obliged to notify the National Bank
and the executive body of the bank, and in the cases stipulated by legislative
acts of the Republic of Belarus also authorized state bodies and other
organizations about their acquisition of the bank’s shares and of all their
transactions with such shares within five days from the date of conclusion
thereof.
Failure
of the head of a bank, his deputies, members of the bank’s collegiate executive
body to comply with the requirements provided for by part one of this Article
entails responsibility in accordance with the legislative acts of the Republic
of Belarus.
To
acquire into ownership, economic management, operative administration, or to
receive into the trust management, as a result of one or more transactions, by
a natural or legal person, including a bank shareholder, or a group of natural
and/or legal persons interlinked by a contract, or by a group of legal persons
that are subsidiaries or dependent in relation to each other, five and more
percent of the authorized fund of a bank, as well as all subsequent
acquisitions by these persons of shares of the bank, the acquirer and trustee
are obliged to obtain permission from the National Bank in the order
established by it.
The
permission of the National Bank shall state a maximum number or stake of the
bank’s shares that may be acquired during a year from the day of issuance of
such permission unless another period established in the permission of the
National Bank.
Issuance
of the permission of the National bank is not allowed if:
acquirer
of shares does not meet the requirements set for the founders of a bank,
established by the National Bank;
not
all documents determined by the National Bank were submitted to obtain the permission
from the National Bank;
documents
submitted to obtain the permission of the National Bank contain false data;
facts of acquisition of the
bank’s shares at the expense of monetary means or other property, not being own
means of the acquirer, and/or provided to the acquirer by the bank, and/or
provided by other persons in the case if the bank itselfprofits received from
criminal activities when the authorized fund of the bank accepted the risks
arising in relation to provision to the acquirer of such monetary means, other
property, and/or profits received from criminal activities;
as
a result of acquisition of shares, the ownership structure of the bank and/or
at least one of its beneficial owners that will posess at least five percent of
the shares would not meet the requirements established by the National Bank.
Transactions
on acquisition or transfer into trust management of five percent or more of the
shares of the bank, made without the authorization of the National Bank, are
invalid.
Article 124. Banks’ transactions with own shares
A bank must
obtain permission of the National Bank for the purchase of more than 5 percent
of the shares issued by the bank
The
National Bank is entitled to deny the issuance of the permission for the
purchase by the bank of shares issued by it if it leads to a breach of safe
operation standards and/or appearance of the grounds for application to the
bank of measures on prevention of the bankruptcy, provided by the legislation
on economic insolvency (bankruptcy).
The
requirements of this Article shall not cover the acquisition by the bank of
shares issued by it in the case provided by indent three of part four of
Article 1341 of this Code, and at the request of the bank's
shareholders in the cases stipulated by the legislation of the Republic of
Belarus.
Article 125. Bank activity on attracting deposits and extending credits
Banks
independently establish terms of and procedures for attracting monetary means
of natural and/or legal persons in deposits and the placement of those monetary
means within the limits established by this Code and normative legal acts of
the National Bank.
Banks shall
ensure access to data regarding the average rates of interest on credits and deposits.
Where the
President of the Republic of Belarus or, in the established order, the
Government of the Republic of Belarus takes decisions on extending bank credits
on preferential terms and conditions or on changing terms and conditions of
credits extended earlier for preferential terms and conditions, such banks are
compensated for their losses from the sources determined in those decisions or
in accordance therewith.
Article 126. Methods of securing fulfillment of obligations under
contracts concluded by banks
The
fulfillment of obligations under contracts concluded by banks may be secured by
a guarantee deposit of money, transfer of legal title in property, including
property rights, pledge of immovable and movable property, suretyship,
guarantee and other methods stipulated by legislation of the Republic of
Belarus or by a contract.
Securing
fulfillment of obligations under contracts concluded by banks by a guarantee
deposit of money, transfer of a legal title in property, including in property
rights, is carried out on conditions stipulated respectively by Articles 148
and 149 of this Code having regard to specific features of legal relationships
arising on the basis of such contracts.
Chapter 16
Imposing Arrest and Levying Execution on Monetary Means and Other Property Held
in Banks. Suspension of Operations on Accounts in Bank
Chapter 127. General provisions of imposing arrest and levying
execution on monetary means and other property held in banks
Arrest on
monetary means and other property of a natural person and legal person held on
accounts, deposits or stored in a bank may be imposed only in accordance with
this Code and other legislative acts of the Republic of Belarus.
Levying
execution on monetary means and other property of a natural person and legal
person held on accounts, deposits or stored in a bank is allowed in the cases
determined by legislative acts of the Republic of Belarus according to:
executive
endorsements of notaries and other execution documents;
decision
(order) of an authorized state body (official).
When arrest
has been imposed on monetary means and other property of a natural person and
legal person held on accounts, deposits or stored in a bank, the bank
discontinues all debiting operations on accounts of that person and return of
property of that person within property limits on which the arrest is imposed
unless otherwise stipulated by legislative acts of the Republic of Belarus and
relevant decision of an authorized state body (official) on imposing arrest.
Article 128. Imposing arrest and levying execution on monetary means
and other property held in banks of a legal person and individual entrepreneur
held in a bank
Arrest on
monetary means and other property of a legal person and individual entrepreneur
held on accounts, deposits or stored in a bank may be imposed only according
to:
a court
decision (ruling) within the amount of a claim;
a decision of
a prosecutor or his deputy, of a body of criminal prosecution in the cases
stipulated by the Code of Criminal Procedure of the Republic of Belarus;
an execution
document.
Arrest on
property of a legal person or individual entrepreneur held on accounts,
deposits or stored in a bank may be also imposed by decision of bodies of the
Committee of State Control of the Republic of Belarus, customs and taxation
bodies in the cases stipulated by legislative acts of the Republic of Belarus.
Article 129. Imposing arrest on monetary means and other property of a
natural person held in bank
Arrest on
monetary means and other property of a natural person not being individual
entrepreneur held on accounts, deposits or stored in a bank may be imposed only
according to:
a court
decision (ruling) for the purposes of securing the execution of a court
sentence in a criminal case concerning the civil suit, other material
punishments or possible confiscation of property, as well as securing claim
and/or execution actions in civil cases, in case put under jurisdiction of
economic courts and in cases on administrative offences;
a decision of
a prosecutor or his deputy, of a body of criminal prosecution in the cases
stipulated by the Code of Criminal Procedure of the Republic of Belarus.
Arrest on
monetary means and other property of a natural person not being individual
entrepreneur held on accounts, deposits or stored in a bank may be also imposed
according to decisions of taxation or customs bodies in the cases stipulated by
legislative acts of the Republic of Belarus.
Article 130. Imposing arrest on monetary means and other property of a
bank
Imposing
arrest on monetary means of a bank is carried out by bank’s transferring
monetary means to a special deposit account with the National Bank. The
National Bank debits such account in the order established by legislation of
the Republic of Belarus.
Imposing
arrest on other property of a bank is carried out in order established by
legislative acts of the Republic of Belarus.
When securing
an action for recovery of monetary means from a bank, the bank is entitled to
place on the court’s deposit account the sum of money claimed by the plaintiff.
Imposing
arrest on the correspondent account of a bank, suspension or termination of
operations on such account are not allowed except for the case of the
revocation of the license to carry out banking activities.
Article 131. Confiscation of monetary means and other property of a
natural and legal person
Monetary
means and other property of a natural and legal person may be confiscated only
on the basis of court decision on property confiscation or a court sentence
having legal effect.
Article 132. Suspension of operations on accounts in the bank
The
suspension of operations on accounts in a bank is carried out by authorized
state bodies (officials) in the cases and the order determined by legislative
acts of the Republic of Belarus.
Chapter 17
Liability of Subjects and Participants of Banking Relationships
Article 133. Liability for carrying out banking activities without the
license to carry out banking activities
Persons
carrying out banking activities without a license to carry out banking
activities are liable in accordance with legislation of the Republic of
Belarus.
When banking
activities are carried out without a license to carry out banking activities, a
legal person may be liquidated upon the decision of the economic court, and
activity of an individual entrepreneur may be terminated in the order
established by legislation of the Republic of Belarus.
Incomes
received as a result of carrying out banking activities without a license to
carry out banking activities and recovered in the established order are to be
transferred to the national budget.
Article 134. Measures of
supervisory reaction, applied by the National Bank
Measures of
supervisory reaction, applied by the National Bank
are:
sending
of a recommendation to eliminate the detected deficiency not being infringement
(hereinafter - shortage) and/or action (omission), which could lead to a
situation that threatens the safe operation of the Bank, and/or the interests
of its depositors and other creditors, and/or the stability of the banking
system, or to avoid such shortage and/or action (omission) in the future;
sending
a recommendation on the performance (non-performance) of an action (omission)
in order to prevent the emergence of conditions conducive to the violation,
and/or a situation that threatens safe operation of the bank, and/or the
interests of its depositors and other creditors, and/or the stability of the
banking the system;
sending
a binding proposal instructions to eliminate a detected violation, and/or to
avoid it in the future, and/or to eliminate conditions conducive to the
violation;
sending
a binding proposal on performance (non-performance) of the action (omission)
the duty on performance (non-performance) of which is provided by the
legislative acts of the Republic of Belarus and/or the normative legal acts of
the National Bank;
sending
a binding proposal to suspend or exclude banking operations that expose a bank
to a risk;
sending
a binding proposal on alienation (in full or in part) of the stake in the
authorized fund of a legal person and/or on the exclusion of another reason to
exert a substantial influence, directly or indirectly (through third parties),
on the decisions taken by the governing bodies of the legal person;
conducting
a meeting with representatives of governing bodies of the bank and/or other
persons to discuss the financial condition of the bank, level of exposures
taken by it, quality of management, prospects of functioning, compliance with
the requirements of the legislation of the Republic of Belarus and/or other
matters related to the activities of the bank;
requesting
a letter providing the duty to eliminate within a certain period of detected
violation (shortage) and/or the action (omission) that could lead to a
situation that threatens safe operation of the bank, and/or the interests of
its depositors and other creditors, and/or stability of the banking system or
to avoid such a shortage, and/or action (omission) in the future;
conducting
an unscheduled inspection in accordance with the legislation governing the
order of organization and conduct of inspections;
change
of the set deadline, and/or frequency of reporting to the National Bank and/or
the introduction of additional reports;
sending
a written notice on the application of a measure of influence;
applying a
measure of influence provided by Article 1341 of this Code.
Measures of
supervisory reaction, indicated in part one of this Article, are applied by the
National Bank in the following order:
those
provided by indents two and three of part one of this Article – in respect of
banks, persons recognized to make part of a bank group and/or bank holding, and
shareholders possessing five percent and more of the bank’s shares;
those
provided by indents four to nine of part one of this Article – in respect of
banks and persons capable to exert a substantial influence, directly or
indirectly (through third parties), on the decisions taken by the governing
bodies of a bank and/or another legal person recognized to make part of a bank
group and/or bank holding, and shareholders possessing five percent and more of
the bank’s shares;
those provided
by indent ten of part one of this Article – in accordance with the legislation
of the Republic of Belarus governing the order of organization and conduct of
inspections;
those
provided by indent eleven of part one of this Article – in respect of banks and
head organizations of bank groups and/or bank holdings;
those
provided by indents twelve and thirteen of part one of this Article – in
accordance with Article 1341 of this Code.
The
decision of the National Bank on the application of a measure of supervisory
reaction is taken on the basis of a reasoned judgment having regard to criteria
determined by the National Bank.
The
decision of the National Bank on the application of a measure of supervisory
reaction may indicate the period of its application and/or the time limit
required to eliminate a detected violation (shortage) and/or the action
(omission) that could lead to a situation that threatens the safe operation of
the bank, and/or the interests of its depositors and other creditors, and/or
the stability of the banking system.
The
National Bank is entitled to apply on the same ground simultaneously or
consecutively several measures of influence and/or of supervisory reaction.
Additional
requirements to the order of application by the National Bank of measures
supervisory reaction are established by normative legal acts of the National
Bank.
The
decision of the National Bank on application of a measure of supervisory
reaction may be appealed by a person to whom such a measure is applied, in the
order established by the legislation of the Republic of Belarus. An appeal against the decision of the National Bank on the application
of measures of supervisory reaction does not suspend execution of such a
decision.
Article 1341. Measures of influence applied by the National
Bank
In the cases
stipulated by Article 97 of this Code, the National Bank is entitled to suspend
or revoke the license to carry out banking activities, including in the part of
carrying out certain banking operations.
In
cases provided by the legislation on economic insolvency (bankruptcy), the
National Bank is entitled to demand to take measures on improvement of a
financial standing of a bank or its reorganization and/or appoint temporal
administration for management of the bank.
In
case of non-fulfillment by a bank of a binding proposal and/or decision of the
National Bank on application of a measure of influence, and/or existence of
losses according to the result of the bank’s annual activity, and/or non-compliance
by the bank with licensing requirements provided by this Code, and/or detection
of a violation (shortage) in the bank’s activity and/or its action (omission)
that lead to the situation that threatens safe operation of the bank, and/or
its interests of its depositors and other creditors, and/or stability of the
banking system, the National Bank is entitled:
to
introduce restrictions on carrying out by the bank of certain banking
operations, and/or activities;
to
demand from bank’s shareholders to take measures to increase the bank's
regulatory capital to a size ensuring compliance with safe
operation standard established by the National Bank;
to
prohibit the distribution of profits among shareholders by declaring and/or
payment of dividends;
to
change for the bank established size of the safe
operation standard and/or to establish an additional safe
operation standard;
to
increase for the bank the established size of the reserve fund, and/or the
amount of deductions to it;
to
introduce a ban on opening by the bank of affiliates and/or creation by the
bank, its affiliate of structural divisions (including mobile ones) located
outside the bank’s location, its affiliate and not having independent
balance-sheet, and/or a ban on carrying out by the bank of banking operations
on remote workplaces;
to
require the removal from office of a member of the board of directors
(supervisory board) and/or the collegiate executive body of the bank, the head
and/or the chief accountant and/or their deputies;
to
demand a repeat passing of the assessment of conformity with
qualification requirements, and/or requirements to business reputation of a member of the board of directors (supervisory board)
and/or the collegiate executive body of the bank, the head and/or the chief
accountant and/or their deputies.
In
the case of non-compliance by a shareholder of a bank with a binding proposal
of the National Bank and/or the requirements for the founders, shareholders and
other beneficial owners of the bank in accordance with this Code, and/or
detection in the bank shareholder’s activity of a violation (shortage) and/or
action (omission) that lead to the creation of a situation threatening the safe
operation of the bank and/or interests of its depositors and other creditors,
the National Bank is entitled:
to
suspend the right of the shareholder, with the exception of the cases when
shares belong to the Republic of Belarus and its administrative and territorial
units, to participate in the governing bodies of the bank with the voting right
in full or in accordance with the list of issues established by the National
Bank;
to
require a shareholder, with the exception of the cases when shares belong to
the Republic of Belarus and its administrative and territorial units, to
alienate (in full or in part) of bank’s shares. In this instance, if
shares were not realized within the established period, that may not be less
than three months, the shareholder must sell and the bank must buy such shares
from him on their nominal value. Upon
refusal of one of the parties, the other party and also the National Bank are
entitled to appeal to the court with a claim to compel to the conclusion of the
contract.
In
case of non-fulfillment by a person recognized to be a part of a bank group
and/or bank holding of a binding proposal and/or a decision of the National
Bank on application of a measure of influence towards it, and/or violation of
other requirements of the banking legislation, and/or detection in the activity
of such person of a violation (shortage) and/or action (omission) leading to
the creation of a situation threatening safe functioning of the bank recognized
to be a part of the same bank group and/or bank holding, and/or interests of
its depositors and other creditors, and/or stability of the bank system, as
well as in case of noncompliance by a bank group and /or bank holding of safe
operation standards established for bank groups and/or bank holdings, the
National Bank is entitled:
to change for a bank group and /or a bank holding company established
size of safe operation standard and /or to establish and additional safe
operation standard;
to
require from a person recognized to be a part of a bank group and /or a bank
holding to alienate (full or partial) the stake in the authorized fund of a
legal person recognized to be a part of the same bank group and /or a bank
holding company, and/or to exclude another ground for exerting substantial
influence, directly or indirectly (through third parties), on the decisions
taken by the governing bodies of such a legal person.
Measures
of influence may be applied by the National Bank, if since the day of violation
that constituted the ground for their application, three years, or from the day
of its detection – six months, have not expired.
Article 135. Liability of bank or non-bank credit and financial
organization for damage to depositors and other creditors
A bank and a
non-bank credit and financial organization are liable for non-fulfillment
(improper fulfillment) of their obligations in compliance with legislation of
the Republic of Belarus and having regard to the specifics provided by this
Code.
A bank or a
non-bank credit and financial organization are not liable for damage to
depositors and other creditors by non-fulfillment (improper fulfillment) of
their obligations thereto, if such non-fulfillment (improper fulfillment) has
been caused by force majeure and also in the cases provided by part two of
Article 136 of this Code.
Officials of
a bank or non-bank credit and financial organization are liable for violation
of the established procedure for concluding transactions, as established by the
legislation of the Republic of Belarus.
If insolvency
(bankruptcy) of a bank or a non-bank credit and financial organization has been
prompted by its founders (participant, property owner) or other persons,
including the head of the bank or non-bank credit and financial organization,
who are authorized to issue instructions binding such bank or non-bank credit
and financial organization or otherwise determine its activities, then, should
the property of the bank or credit and financial organization be insufficient,
subsidiary liability may be imposed on the said persons with respect to its
obligations.
Article 136. Liability of the National Bank, banks, or non-bank credit
and financial organizations for damage caused as a result of suspension of
operations on accounts, imposing arrest or levying execution on monetary means
and other property
A bank or a non-bank
credit and financial organization bear material liability for damage caused to
customers of the bank or non-bank credit and financial organization in the case
of imposing arrest on property of the bank or the non-bank credit and financial
organization.
The National
Bank, banks, and non-bank credit and financial organizations do not bear
liability for damage caused as a result of suspension of operations on accounts
or levying execution on monetary means and other property of natural persons
and legal persons.
SPECIAL
PART
SECTION VI.
ACTIVE BANKING OPERATIONS
Chapter 18
Bank Credit
Article 137. Credit contract
Under a
credit contract, a bank or a non-bank credit and financial organization
(lender) undertakes to provide monetary means (credit) to another person
(borrower) in the amount and on the terms determined by the contract, and the
borrower undertakes to repay (reimburse) the credit and interest thereon. In doing so, the creditors are prohibited to charge any additional
payments (commissions or other fees) for the use of credit.
Article 138. Determining the day of granting credit
The day of
granting credit is considered the day when the amount of credit is credited to
the borrower's account or transferred by a bank in payment of settlement documents
presented by the borrower, or used in compliance with instructions of the
borrower, or paid to the borrower in cash.
Article 139. Form of credit contract
A credit
contract must be concluded in writing. Non-observance
of the written form of a credit contract entails its invalidity.
Article 140. Material terms of credit contract
The material
terms of a credit contract are terms concerning:
the sum of
credit with indication of the credit currency (for a credit line, maximum
amount of the monetary means granted to the borrower and the maximum limit of
outstanding indebtedness of the borrower);
the term and
procedure for granting and repayment (reimbursement) of the credit;
the
interest on credit and procedure for payment thereof, with the exception of the
cases of granting credit on preferential terms on the basis of decisions taken
by the President of the Republic of Belarus or, in the established order, by
the Government of the Republic of Belarus;
purposes for
which the borrower undertakes to use or not to use granted monetary means
(intended use of the credit), in the case stipulated by part two of Article 144
of this Code;
liability of
the lender and the borrower for non-fulfillment of the obligations under the
credit contract;
other terms
and conditions concerning which are to be agreed upon according to the
declaration of one of the parties.
Article 141. Lender's refusal to enter into credit contract
A lender is
entitled to refuse to conclude a credit contract if there is data evidencing
that the amount of the credit extended to the borrower will not be repaid
(reimbursed) on time, if the borrower fails to provide security for the
fulfillment of the obligations under credit contract, if the economic court has
taken decision on bankruptcy with liquidation (termination of activities) of
the borrower, or if there are any other grounds which could influence the
fulfillment by the borrower of the obligations under the credit contract or are
stipulated by legislation of the Republic of Belarus.
The
lender is entitled to refuse to fulfill the obligations under the credit
contract if the borrower has not fulfilled its obligations under such contract.
Article 142. Borrower's refusal to receive credit
After a
credit contract has been concluded, the borrower is entitled to refuse, unless
otherwise stipulated by the legislation of the Republic of Belarus or the
credit contract, to receive credit, in whole or in part, notifying the lender
prior to the date of granting credit established in the contract.
Article 143. Repayment of credit before maturity
A credit may
be repaid (reimbursed) before maturity, subject to the terms and conditions
stipulated by the credit contract. In case if
the credit contact does not provide for a repayment (reimbursement) of the
credit before maturity, such credit may be repaid (reimbursed) before maturity
only with the consent of the lender.
When the
borrower fails to fulfill (improperly fulfills) his obligations under the
credit contract, the lender may demand repayment (reimbursement) of the credit
before maturity.
Article 144. Intended use of credit
A credit
contract may be concluded with the condition of intended use of the credit.
A credit
contract stipulating granting credit against the guarantee of the Government of
the Republic of Belarus, a guarantee (suretyship) of a local executive and
administrative body must contain the condition of intended use of the credit.
If a credit
contract has been concluded with the condition of intended use of the credit,
the lender is obliged to ensure to the lender a possibility to control the
intended use of the credit.
When
the borrower fails to fulfill the condition of intended use of the credit of
the credit contract and/or the duties stipulated by part three of this Article,
the lender is entitled, unless otherwise stipulated by the credit contract, to
demand the repayment (reimbursement) of the credit before maturity, payment of
interest due and/or to refuse to further credit the borrower under this
contract.
Article 145. Interest for using credit
The
lender is obliged, prior to the conclusion of a credit contract, to bring to
notice of each borrower the information on the interest rate for using credit.
The
amount of interest for using credit may be determined with application of a
fixed annual interest rate or variable annual interest rate.
The
amount of the fixed annual interest rate shall be stipulated in the credit
contract at its conclusion and is to be constant during the term of validity of
the credit contract.
The
amount of the variable interest rate changes in the order agreed between the
parties at the conclusion of the credit contract, and may not be changed
unilaterally.
The
lender determines, at the conclusion of a credit contract with a borrower, independently
the amount, frequency of charging and periods of interest payment for using
credit.
The
parties are entitled to foresee in a credit contract the order under which the
interest for using credit shall be paid in full on the day of repayment (reimbursement)
of the credit or in equal parts during the period of repayment (reimbursement),
unless otherwise provided by the President of the Republic of Belarus or, in
the established order, by the Government of the Republic of Belarus.
Interest
for using credit is charged from the day following the day of granting credit
untill the day of repayment (reimbursement) of the credit inclusively.
Payment of
the interest for using credit on the day of granting a credit is not allowed.
The
day of repayment (reimbursement) of a credit, payment of interest for using
credit is deemed to be the day on which the means are credited to the account
of the lender or paid in cash.
A borrower
which fails to repay (reimburse) the credit on time is obliged to pay the
interest at a higher rate, determined in the credit contract, during the period
from the day following the day of repayment (reimbursement) until its full
repayment (reimbursement), unless other rate is provided by the legislation of
the Republic of Belarus.
When the
means are not sufficient for the fulfillment of the obligations under a credit
contract in full, the borrower shall reimburse in the first place the expenses
of the bank relative to the fulfillment of the obligation, in the second place
– the principal of the credit, then interest due for using the credit, in the
third place – shall fulfill other obligations under the credit contract, unless
otherwise provided by the President of the Republic of Belarus.
The
credit contract may provide for the liability of the borrower for untimely late
payment of the interest for using credit.
Article 146. Insurance by the lender of the risk of non-repayment
(non-reimbursement) of credit and/or of untimely repayment (reimbursement) of
credit
Under a contract
of insurance of risk of non-repayment (non-reimbursement) and/or of untimely
repayment (reimbursement) of credit, the insurance organization (insurer)
undertakes to indemnify the insured (lender) against the damage caused to its
material interests by non-repayment (non-reimbursement) and/or of untimely
repayment (reimbursement) of credit. Under such
contract, as the insured may act a bank or non-bank credit and financial
organization being lenders.
Unless
otherwise stipulated by the insurance contract, the insurer which has paid
insurance compensation to the insured (lender) receives, within the limits of
the paid compensation, the right of the insured (lender) to damage compensation
(subrogation).
Article 147. Methods of securing fulfillment of obligations under
credit contract
The
fulfillment of obligations under a credit contract can be secured by a
guarantee cash deposit, transfer of the legal title to property, including
property rights, to the lender, pledge of movable and immovable property, suretyship,
guarantee, and other methods stipulated by legislation of the Republic of
Belarus or contract.
Article 148. Guarantee cash deposit
To guarantee
the fulfillment of obligations under a credit contract, a borrower or a third
person may transfer means in Belarusian rubles or foreign currency to the
lender. The interest is not charged on the
guarantee cash deposit unless otherwise stipulated by the contract. Means
transferable as a guarantee of fulfillment of obligations under the credit
contract may be held in accounts opened by the lender. If
the borrower fails to fulfill his obligations under the credit contract, the
lender is entitled to satisfy his claims at the expense of deposited means.
If the credit
currency is other than that of the guarantee cash deposit, the rate of
conversion is determined by an agreement between the parties. If
the parties fail to come to an agreement, the dispute on the conversion rate is
to be decided in the court.
Articles 179
to 188 of this Code do not cover the guarantee cash deposit, unless otherwise
stipulated by the contract.
Article 149. Transfer of legal title to property to lender
To secure the
fulfillment of obligations under a credit contract, the legal title to the
property belonging to the borrower or a third person on the right of ownership,
on the right of economic management or on the right of operative
administration, including to property rights, may, based on a separate
contract, be transferred to the lender unless the right to the transfer of the
legal title is restricted by the property owner or legislation of the Republic
of Belarus.
The contract
on the transfer of the legal title to the property, including to the property
rights, must stipulate the right of the borrower to repurchase the property
transferred to the lender by repaying the credit (right of redemption) within
the time period for repayment (reimbursement) of the credit determined in the
credit contract. The lender may not to alienate the
property before the expiration of the time period for the exercise of the right
to repurchase.
The transfer
of the legal title to the property does not entails an obligatory delivery of
the property unless otherwise stipulated by the contract. In
the event when the property is to be delivered to the lender in accordance with
terms and conditions of the contract on the transfer of the legal title to the
property, the lender is obliged to possess, use and dispose of the property
within the limits determined by the contract on the transfer of the legal title
to the property.
The lenders
obtains the right of ownership, the right of economic management or the right
of operative administration of the property, including to the property rights,
if the borrower fails to repay (reimburse) the credit within time period
established by the credit contract. When the
value of the property specified in the contract on the transfer of the legal
title to the property exceeds the amount of claims of the lender under the
credit contract, the lender is obliged to pay the difference within the time
period established by such contract.
Relationships
between the borrower and the lender under the contract on the transfer of the
legal title to the property, including to the property rights, which are not regulated
by this Article are regulated by norms of legislation of the Republic of
Belarus on a purchase/sale contract. In cases
stipulated by legislation of the Republic of Belarus, contracts providing for
the transfer of a legal title the property, including to the property rights,
are subject to state registration in the manner prescribed by purchase/sale
contracts.
Article 150. [Excluded]
Article 151. Line of credit
When opening
a line of credit, the borrower has the right, in accordance with the credit
contract, to obtain and use credit during a determined time period within an
established maximum amount (limit) of the credit subject to compliance with the
maximum amount (limit) of outstanding indebtedness on the credit.
Article 152. Inter-bank credit contract
An inter-bank
credit contract means a credit contract which establishes relations between
banks with respect to mutual lending the specifics of which are determined by
the National Bank.
Unless
otherwise stipulated by the National Bank or credit contract, the provisions of
this Chapter relating to methods of securing the fulfillment of obligations and
form of the credit contract are not applied to an inter-bank credit contract.
Chapter 19
Contract of Financing Against Assignment of Monetary Claim (Factoring Contract)
Article 153. Contract of financing against assignment of monetary claim
Under a
contract of financing against assignment of monetary claim (hereinafter –
factoring contract) one party (factor), bank or non-bank credit and financial
organization, undertakes to the other party (creditor) to enter into a monetary
obligation between the creditor and the debtor on the creditor's side by
repaying the creditor the sum of the debtor’s monetary obligation at a
discount. A discount means the difference
between the sum of the monetary obligation of the debtor and the sum payable by
the factor to the creditor.
The monetary
obligation may be assigned by the creditor to the factor also for the purposes
of securing the fulfillment of the obligations of the creditor before the
factor.
The
size of the discount, the method of its calculation and payment procedures are
determined in the factoring contract. Factoring contract terms
may additionally provide for other types of remuneration charged by the factor
for rendering to the creditor other financial services related to the monetary
claims being the object of assignment.
Article 154. Classification of factoring contracts
Under a
factoring contract:
the debtor may
be notified of the conclusion of the factoring contract under which creditor’s
rights have been transferred to the factor (open factoring);
the debtor
may be not notified of the conclusion of the factoring contract under which
creditor’s rights have been transferred to the factor (confidential factoring).
Factoring
contracts may be classified as to:
place of
factoring: domestic if parties to a factoring contract are residents,
international if one of the parties to a factoring contract is non-resident;
terms of
payment: contracts without recourse when the factor bears the risk on
non-payment of monetary claims by the debtor; with recourse when the creditor
bears the risk of non-payment of monetary claims by the debtor.
Article 155. Subject of assignment under factoring contract
A subject of
assignment under a factoring contract may be both a matured monetary claim
(existing monetary claim) and monetary claim that will mature in the future
(future monetary claim).
When a future
monetary claim has been assigned, the factor is entitled to demand its
fulfillment only upon maturity of such a claim. At
that, if the maturity is subject to a specific circumstance (event), the factor
is entitled to demand the fulfillment of the assigned monetary claim only upon
the occurrence of such circumstance (event).
For cases
stipulated in part two of this Article, no additional formalization of the
monetary claim assignment is required.
Article 156. Fulfillment of monetary claim by debtor
The debtor is
obliged to fulfill monetary claim to the factor provided that he has been
notified in writing by the creditor or factor of the assignment of the monetary
claim with indication of the monetary claim to be fulfilled and the bank or
non-bank credit and financial organization acting as factor.
The
fulfillment of the monetary claim by the debtor to the factor is deemed the
fulfillment to an appropriate creditor and exempts the debtor from the
fulfillment of the corresponding obligation before the creditor.
Article 157. Agreement on prohibiting (limiting) assignment of monetary
claim
Assignment of
monetary claims to the factor is valid even if there is an agreement between
the creditor and the debtor on prohibiting (limiting) the assignment.
The provision
of part one of this Article does not exempt the creditor which has breached the
agreement on prohibiting (limiting) the assignment of monetary claim from
obligations or liability before the debtor in connection with such assignment.
Article 158. Subsequent assignment of monetary claim
Unless
otherwise stipulated by a factoring contract, subsequent assignment of monetary
claim by the factor is not allowed.
If subsequent
assignment of a monetary claim is permitted by the factoring contract, and the
monetary claim has been assigned to a bank or non-bank credit and financial
organization, relationships of the parties are regulated by the provisions of
this Chapter.
Article 159. Rights of factor to monetary obligation sum paid by debtor
The factor obtains
rights to the whole sum of monetary obligation paid by the debtor under the
assigned monetary claim, with exception of the case stipulated by part two o
this Article.
If the
monetary claim towards the debtor has been assigned by the creditor with a view
of securing the fulfillment of its obligation to the factor and otherwise not
stipulated by the factoring contract, the factor is obliged to present a report
to the creditor and pass on to him the sum of monetary obligation in part
exceeding the sum of obligations of the creditor before the factor, secured by
the assignment of the claim.
Article 160. Counterclaims of debtor against claims of factor
The debtor is
entitled to raise for the set-off against the claims of the factor monetary
claims based on the contract with the creditor which were available to the
debtor by the time written notification of the assignment was received by the
debtor and which matured before the receipt of the notification or the maturity
of which has been not determined or determined as on call.
The set off
of the claims of the debtor based on the breach, by the creditor, of an
agreement prohibiting (limiting) assignment of the monetary claim is not
allowed.
Article 161. Repayment to Debtor of Monetary Obligation Sum Paid to Factor
Where a
creditor violates his obligations under a contract concluded with a debtor, the
debtor is not entitled to demand repayment of the monetary obligation sum paid
to the factor under the assigned monetary claim, provided the debtor is
entitled to receive such sum directly from the creditor, except where the
factor fails to provide the creditor with the sum of the monetary obligation
related to the assignment of monetary claim.
Article 162. Creditor's liability to factor
The creditor is
obliged to prove validity of the assigned monetary claim by documents
evidencing his claim to the debtor and bears the liability before the factor
for the validity of the assigned monetary claim.
Assigned
monetary claim is deemed to be valid if the creditor has the right to assign it
and at the moment of assignment he is not aware of any circumstances based on
which the debtor is entitled not to fulfill such claim.
In the case
of invalidity of the assigned monetary claim the factor obtains the right of recourse
to the creditor irrespective of terms and conditions of the payment.
Under a
factoring contract without recourse, the creditor is not liable for the
non-fulfillment ( undue fulfillment) by the debtor of the assigned monetary
claim.
Under a
factoring contract with recourse, the factor is entitled to raise before the
creditor the demand on reimbursement of:
the sum of
monetary obligation not paid by the debtor and losses incurred in the case when
the debtor has not paid to the factor the monetary obligation sum due to the
latter under the assigned monetary claim or the paid sum is less than the sum
due;
losses
incurred in the case when the debtor has delayed the payment to the factor of
the monetary obligation sum due to the latter under the assigned monetary
claim.
Article 163. Undisclosed factoring
Under an
undisclosed factoring contract, the fulfillment by the debtor of the monetary
claim to the creditor is considered the fulfillment to an appropriate creditor.
Relationships
under an undisclosed factoring contract are regulated by the rules of factoring
specified in Articles 153, 155, and 157 to 162 of this Code, unless otherwise
stipulated by the contract or follows from the nature of the transaction.
Chapter 20
Bank Guarantee. Suretyship
Article 164. Concept of bank guarantee
By virtue of
a bank guarantee, a bank or a non-bank credit and financial organization
(guarantor) gives in its own name at the request of another person (principal
or another instructing party) a written undertaking to pay the principal's
creditor (beneficiary) an monetary amount (make the payment) in accordance with
the terms and conditions of the guarantee.
The
instructing party means a principal, unless otherwise provided by the
legislative acts of the Republic of Belarus, and also a bank or another person,
different from the guarantor (counter-guarantor), which give instructions to a
bank or non-bank credit and financial organization to issue a guarantee
(counter-guarantee) and are responsible for the reimbursement of the paid sums
under the guarantee (counter-guarantee) to the guarantor (counter-guarantor).
Depending on
the parties participating in the obligation, a bank guarantee may be a
counter-guarantee or syndicated guarantee.
A
counter-guarantee means counter obligation provided by the counter-guarantor to
the bank or non-bank credit and financial organization to secure the issuance
of the primary guarantee.
A
syndicated guarantee means a bank guarantee issued to a beneficiary by several
guarantors through a main bank-guarantor or non-bank credit and financial
organization – guarantor.
Specific
features of issuance of a bank guarantee to secure the fulfillment of
obligations on bonds are established by the legislation on securities.
Article 165. Terms and form of bank guarantee
The terms of
a bank are:
name of the
principal;
name of the
beneficiary;
name of the
guarantor;
contract or
another document stipulating the need to issue the bank guarantee;
maximum
monetary sum payable;
period for which
the guarantee is issued or the circumstance (event) upon occurrence of which
the undertaking of the guarantor on the bank guarantee is terminated (validity
period of the bank guarantee);
conditions
for the payment to the beneficiary of the monetary amount (making the payment).
possibility
of a transfer of the bank guarantee (transferable bank guarantee);
other terms
and conditions concerning which are to be agreed upon according to the
declaration of one of the parties.
A bank guarantee
must be issued in a written form. An electronic
document satisfies the written form requirement for a bank guarantee.
Article 166. Securing by bank guarantee of obligation of principal
A bank
guarantee secures the due fulfillment by
the principal of its obligations toward the beneficiary (underlying
obligation).
Article 167. Independence of guarantor's undertaking under bank
guarantee from underlying obligation
In relations
between a guarantor and a beneficiary, the guarantor's obligation to the beneficiary
stipulated by a bank guarantee is separate from the underlying obligation for
securing which the guarantee has been issued, even if a reference to that
obligation is included in the guarantee. Amendment
of the underlying obligation after the issue of a guarantee does not create
legal consequences for the guarantor, unless otherwise stipulated in the
guarantee.
Once
a bank guarantee is issued, no further agreements between the guarantor and the
principal or another instructing party create legal consequences for the
beneficiary.
Article 168. Irrevocability of bank guarantee
A
bank guarantee is irrevocable from the moment of its issuance.
Introduction
of changes and additions in the bank guarantee after its issuance is allowed
with the consent of the beneficiary.
Article 169. Transfer of bank guarantee
Transfer
of a bank guarantee is possible, if it contains a provision about its possible
transfer. The bank guarantee may be transferred more than once for the whole sum
of the guarantee (on the moment of transfer). The bank guarantee may be transferred to a new beneficiary, if the
rights on the main transaction pass to him. The guarantor is not obliged to transfer the bank guarantee, unless he
expressed his consent thereto.
Transfer
of a counter-guarantee is not carried out.
Article 170. Effectiveness of bank guarantee
A bank
guarantee comes into effect from the date of the issue, unless otherwise
stipulated in the guarantee. The
bank guarantee is deemed to be issued from the moment of its sending (transfer)
to the beneficiary or another person on the indication of the instructing
party.
If a bank
guarantee is transferred to the beneficiary by mail or as an electronic
document, it is deemed to be issued from the moment of its submission to a
communication organization or transmission of the electronic document by the
teletransmission system of the sender.
Article 171. Demand of beneficiary under bank guarantee
The
beneficiary's demand to pay a monetary amount (make the payment) under a bank
guarantee must be presented to the guarantor in a written form. The
demand under a bank guarantee must be accompanied by documents specified in the
guarantee. The beneficiary shall indicate the
nature of the non-fulfillment ( undue fulfillment) by the principal of the underlying
obligation for securing which the guarantee is issued in the demand or in the
documents accompanied it.
The
beneficiary's demand must be received by the guarantor not later than the
validity term of the bank guarantee.
Article 172. Guarantor's duties upon receipt of beneficiary's demand
under bank guarantee
Upon
receipt the beneficiary's demand to pay a monetary sum (make the payment) under
a bank guarantee, the guarantor is obliged to give notice to the principal or
another instructing party of the received demand and deliver to them copies of
the demand and documents attached thereto.
The guarantor
is obliged to examine the beneficiary's demand and documents attached thereto and
determine whether the demand and documents attached thereto comply with the
terms of the bank guarantee.
Article 173. Time for examining by guarantor beneficiary's demand under
bank guarantee
The guarantor
is obliged, within not later than five working days following the day of
receipt of the beneficiary’s demand to pay a monetary amount (make the payment)
and documents attached thereto, to pay to the beneficiary the monetary sum
(make the payment) under the bank guarantee or in the event of refusal to pay
to give notice thereof to the beneficiary in writing
Article 174. Guarantor's refusal to satisfy beneficiary's demand under
bank guarantee
The guarantor
refuses to satisfy the beneficiary's demand under a bank guarantee if the
demand and/or documents attached thereto do not comply with the terms of the
bank guarantee or in the event of termination of the undertaking of the
guarantor under the bank guarantee.
Article 175. Limits of guarantor's undertaking under bank guarantee
The guarantor's
undertaking toward the beneficiary stipulated by the bank guarantee is limited
by the payment of the monetary sum for which such guarantee is issued.
Article 176. Termination of undertaking of guarantor under bank
guarantee and of principal under underlying obligation
The
guarantor's undertaking to the beneficiary under the bank guarantee terminates:
upon the
payment to the beneficiary of the monetary sum for which the guarantee is
issued (making the payment);
upon expiry
of the period for which the guarantee is issued (validity period) unless
otherwise stipulated in the guarantee; In
case if the guarantee or counter-guarantee does not indicate the period of its
validity, the validity of the guarantee terminates upon expiry of three years
from the day of its issuance, and the validity of the counter-guarantee
terminates in thirty calendar days after the guaranty lost its effect;
as a
consequence of renunciation by the beneficiary of his demand under the bank
guarantee by its return to the guarantor;
as a
consequence of renunciation by the beneficiary of his demand under the
guarantee by sending a written notice to the guarantor of the release from
obligations; or
Termination
of the guarantor's undertaking to the beneficiary under the bank guarantee on
grounds stipulated by indents two, three and five of part one of this Article
is not dependent on whether or not the bank guarantee has been returned to the
guarantor.
Where a
guarantor undertaking to the beneficiary under the bank guarantee is terminated,
the guarantor is obliged to give notice thereof to the beneficiary or another
instructing party not later than on the working day following the day of
termination.
The
undertaking of the principal to the beneficiary under the underlying obligation
for securing of which the bank guarantee is issued is terminated in the
relevant part by the fulfillment by the guarantor of his undertaking to the
beneficiary under the bank guarantee.
Article 177. Guarantor’s recourse against principal
Unless
otherwise agreed upon between the guarantor and the principal under the bank
guarantee, the guarantor obtains no right to recourse against the principal or
another instructing party for reimbursement of monetary sums paid to the
beneficiary.
The guarantor
is not entitled to demand from the principal or another instructing party to
reimburse monetary amounts paid to the beneficiary not in accordance with terms
of the bank guarantee or for non-fulfillment ( undue fulfillment) of the
undertaking of the guarantor toward the beneficiary.
Article 178. Suretyships of bank and non-bank credit and financial
organization
A bank or a
non-bank credit and financial organization is entitled to undertake toward
creditors of another person for the fulfillment by that person of his monetary
obligation in whole or in part (issue suretyships) in accordance with
legislation of the Republic of Belarus.
SECTION VI
PASSIVE BANKING OPERATIONS
Chapter 21
Bank Deposit
Article 179. Concept of bank deposit
A bank
deposit is monetary means in Belarusian rubles or foreign currency deposited by
natural or legal persons in a bank or non-bank credit and financial
organization for the purposes of safekeeping and earning income for a time
period or at call or till the occurrence (non-occurrence) of a circumstance
(event) determined in the concluded contract.
Article 180. Right to accept monetary means in deposits
Monetary
means are accepted in deposits by a bank or a non-bank credit and financial
organization having the right to accept monetary means of natural and/or legal
persons in deposits on the basis of the license to carry out banking
activities. Acceptance of monetary means in
deposits are formalized in the form of a bank deposit contract or other
contract containing terms and conditions similar to the terms and conditions of
a bank deposit contract established by this Code.
Article 181. Bank deposit contract
Under a bank
deposit contract, one party (deposit taker) accepts monetary means, deposit,
from the other party (depositor) and undertakes to repay the deposited monetary
means, perform cashless settlements at instructions of the depositor in
accordance with the contract, and to pay interest thereon in the manner and on
the terms and conditions specified in the contract.
The deposit
is repaid to the depositor at his request and in the manner specified by this
Code and appropriate contract.
Article 182. Types of bank deposit contract
The types of
a bank deposit contract are:
a demand bank
deposit contract;
a term bank
deposit contract;
a conditional
bank deposit contract.
A demand band
deposit contract is a contract whereby the deposit-taker is obliged to repay
deposit and pay interest thereon at the first request of the depositor.
A term bank
deposit contract is a contract whereby the deposit-taker is obliged to repay
deposit and pay interest thereon at the expiration of the time period specified
in the contract.
A conditional
bank deposit contract is a contract whereby the deposit-taker is obliged to
repay deposit and pay interest thereon upon the occurrence (non-occurrence) of
the circumstance (event) specified in the contract.
Article 183. Form of bank deposit contract
A bank
deposit contract must be made in a written form.
A bank
deposit contract is deemed to be in a written form if it is formalized in a
documentary form (as a deposit contract, savings book, savings certificate or
certificate of deposit, deposit account contract, etc.).
Failure to
comply with a written form of a bank deposit contract entails invalidity of the
contract from the date of its conclusion.
Article 184. Material terms and conditions of bank deposit contract
Material
terms and conditions of a bank deposit contract include:
the currency
of deposit and the initial amount of the deposit;
interest on
the deposit;
type of the
bank deposit contract;
the time of
deposit repayment , in respect of a term deposit contract;
circumstance
(event) upon occurrence (non-occurrence) the deposit taker undertakes to repay
the deposit, in respect of a deposit in escrow contract;
surname, own
name, patronymic (if available), identity document details of the natural
person, name and place of location of the legal person (place of location of
its permanent executive body), in the name of which the deposit is placed;
other terms
and conditions concerning which are to be agreed upon according to the
declaration of one of the parties.
The bank
deposit contract concluded with depositor, natural person (with exception of a
depositor being individual entrepreneur), besides the terms and conditions
determined by part one of this article or other legislation of the Republic of
Belarus, shall contain the following material conditions:
the order of
placement of monetary means in the deposit;
the order of
repayment of monetary means to individuals in the cases of non-fulfillment of
the obligation by the deposit-taker or an early termination of the contract;
the liability
of the deposit-taker for the non-fulfillment of the obligation.
Article 185. Depositors and theirs rights
Depositors
may be both natural and legal persons.
Depositors
are free in selecting a bank and/or a non-bank credit and financial
organization for depositing their monetary means and may hold deposits with one
or more banks and/or with one or more non-bank credit and financial
organizations.
Depositors
may dispose of their deposits, obtain income thereon, give instructions to the
bank or non-bank credit and financial organization on transfer of monetary
means from their deposit accounts to other bank accounts and/or to other
persons and make use of other kinds of bank services in accordance with
legislation of the Republic of Belarus and bank deposit contract.
Depositors
have the right to replenish their deposits on the terms and conditions of an
earlier contract, if it is stipulated by terms and conditions of the bank
deposit contract.
Charging fees
(payment) for placing by a depositor of monetary means in a deposit and
completion of the sum of the deposit are not allowed.
Article 186. Depositors’ right to recover deposits
Deposit-takers
ensure safety of deposits and timely fulfillment of their obligations toward
depositors.
Deposit-takers
are obliged to repay deposits in accordance with the terms and conditions of
the bank deposit contracts.
Under a term
bank deposit contract or conditional deposit contract, a depositor, natural
person (with exception of an individual entrepreneur) is entitled to demand the
repayment of the deposit before the maturity of the deposit or the occurrence
of the circumstance (event) stipulated in the contract. The
deposit-taker is obliged to the deposit within five days from the day of
submission of the demand.
A provision
of a term or conditional bank deposit contract on the waiver by the depositor
of the right to demand premature repayment of the deposit is void.
If a term or
conditional bank deposit is repaid to the depositor at his demand prematurely
or before the occurrence of the circumstance (event) specified in the contract,
interest on deposit is paid in the amount and in the manner stipulated by the
bank deposit contract.
Article 188. Interest on deposit
The
deposit-takers pay the depositor interest on the deposit at a rate stipulated
by the bank deposit contract.
The rate of
interest on term deposits and deposits in escrow may be change by agreement of
the parties, unless otherwise stipulated by the bank deposit contract.
In the event
of the decrease of the refinancing rate established by the National Bank, the
deposit-taker has the right to unilaterally change the rate of interest on deposits
paid in official monetary unit of the Republic of Belarus (Belarusian rubles)
with a prior notification of depositors if it is stipulated by the bank deposit
contract.
In the event
of decreasing of the interest rate on deposit by the deposit-taker, the new
rate is applied to the deposit that has been placed prior to the notification
of the depositor of the decrease of the interest rate in the national printed
mass media being official edition or in another way stipulated by the bank
deposit contract, on expiration of at least one month from the date of
notification.
Article 188. Procedure for calculation and payment of interest on
deposit
Interest on a
deposit accrues from the date of receipt by the deposit-taker until the day
preceding the day of its repayment to the depositor, unless otherwise
stipulated by the bank deposit contract.
Interest on a
deposit is paid to the depositor monthly, unless otherwise stipulated by the
bank deposit contract.
When a
deposit is being repaid, interest is calculated and paid in full.
Article 189. Placing monetary means on deposit account of depositor by
other persons
Unless
otherwise stipulated by the bank deposit contract, monetary means remitted to
the depositor’s account by other persons may be entered to the deposit.
Article 190. Deposits in the name of other persons
The bank
deposit contract may be concluded in the name of other person which obtains the
rights of a depositor from the day of presentation to the deposit-taker of the
first demand in a written form with respect to the deposit.
Prior to the
presentation by a person in whose name the deposit has been placed of the first
demand, the person who has concluded the bank deposit contract may use the
rights of the depositor with respect to the deposit place by him in the name of
another person.
The bank
deposit contract on the name of a natural person who have died by the moment of
conclusion of the contract or on the name of a legal person liquidated by this
moment is invalid from the day of its conclusion.
If prior to
the presentation of the first demand, the person in whose name the deposit was
placed renounced the deposit, or the natural person died, was considered
missing or declared dead, or the legal person was liquidated, the person that
concluded the bank deposit contract may make use of the rights with respect to
the deposit placed by him in the name of another person.
The rules on
a contract in favour of a third person established by civil legislation apply
to the bank deposit contract in the name of another person, unless it
contradicts the rules of this Article and the nature of the bank deposit.
Article 191. Bank deposit of precious metals and/or precious stones
A bank
deposit of precious metals and/or precious stones means precious metals and/or precious
stones placed by natural and legal persons in a bank or a non-bank credit and
financial organization with a view to earning income for a term or at call or
till the occurrence (non-occurrence) of a circumstance (event) determined in
the contract. Income on a bank deposit of precious
metals and/or precious stones is paid in the form of interest and in the manner
determined by the bank deposit contract of precious metals and/or precious
stones.
Interest on a
deposit of precious metals and/or precious stones may by paid in the form of
monetary means, precious metals and/or precious stones upon an arrangement of
the parties with the observance of requirements of the legislation of the
Republic of Belarus.
Interest on a
deposit of precious metals and/or precious stones may be paid also in another
form on the terms and conditions and in the manner determined by the bank
deposit contract of precious stones and/or precious stones.
The rules of
this Chapter apply to the bank deposit of precious metals and/or precious
stones unless otherwise stipulated by legislation of the Republic of Belarus or
follows from the nature of obligations under the contract of bank deposit of
precious metals and/or precious stones.
Article 192. Savings book
A bank
deposit contract with a depositor, natural person (with exception of an
individual entrepreneur), may be formalized by a savings book issued by the
deposit-taker.
The savings
book shall specify:
the name,
place of location of the depositor (place of location of its permanent
executive body);
series and
number of the savings book;
surname, own
name, patronymic (if available) of the depositor – for a nominal savings book;
type of the
bank deposit contract;
the deposit
account number;
amount of the
deposit in numbers and in words, as well as amounts of monetary means credited
and debited to the account;
the currency
of the deposit;
interest on
the deposit;
the account
balance on the moment of presenting the savings book to the deposit-taker;
the time
period for the deposit repayment, for a term bank deposit;
the
circumstance (event) on the occurrence (non-occurrence) of which the
deposit-taker undertakes to return the deposit, for a conditional bank deposit.
Deposit data
specified in the savings book shall serve as a basis for settlements between
the deposit-taker and the depositor.
The
deposit-taker repays the deposit and interest thereon and fulfills instructions
of the depositor on remittance of monetary means from his deposit account to
other persons only upon presentation of the savings book.
Article 193. Types of savings book
A savings
book may be either a nominal savings book or a bank savings book to bearer.
Article 194. Nominal savings book
A nominal savings
book is a savings book under which the right to withdraw the deposit and
interest thereon pertains only to the person named in it or his representative
with corresponding powers.
The
operations on the deposit are performed by the deposit-taker only upon the
presentation of the nominal savings book.
If a nominal
savings book is lost or is unfit for presentation, the deposit-taker, on the
depositor’s application, issues a new personal savings book or pays, at the
demand of the depositor, the balance on his deposit account and interests due.
Article 195. Bank savings book to bearer
A bank
savings book to bearer is a savings book under which the right to withdraw the
amount of the deposit and interests on the deposit pertains to the person presenting
such savings book.
The bank
savings book to bearer constitutes a security to bearer.
The
restoration of rights under a lost savings book to bearer is carried out the
court the order established by procedural legislation.
Article 196. Savings certificate and deposit certificate
A savings
certificate is a security certifying the amount of the deposit placed to the
deposit-taker and the rights of the depositor (natural person holding the
certificate, with exception of an individual entrepreneur—certificate holder)
to withdraw, at maturity, the amount of the deposit and interest thereon at the
deposit-taker that has issued the certificate or at any affiliate (branch) of
the deposit-taker.
A deposit
certificate is a security certifying the amount of the deposit placed to the
deposit-taker and the rights of the depositor (legal person/ individual
entrepreneur – certificate holders) to withdraw, at maturity, the deposit and
interest thereon at the deposit-taker or at any affiliate (branch) of the
deposit-taker.
Savings and
deposit certificates may be nominal securities or securities to bearer.
The savings
certificate must contain:
the name
" savings certificate";
the series
and the number;
the date of
the deposit;
the amount of
the deposit in figures and in words in Belarusian rubles;
the rate of
the interest on the deposit and the intervals for its payment;
the date of
deposit repayment;
the
obligation of the deposit-taker to return the amount place in the deposit and
to pay the interest due;
the procedure
for the return of monetary means to the depositor in the case of
non-fulfillment of the obligation or premature termination of the contract
established by an authorized body of the bank (it is allowed to indicate to
these data referring to the source of the publication of the relevant act of
the authorized body of the bank);
the liability
of the deposit-taker for the non-fulfillment of the obligation;
the name and
location of the deposit-taker (location of its permanent executive body);
surname, own
name, patronymic (if available), identity document details of the depositor if
the certificate is a nominal security;
the
indication “to bearer” if the certificate is a security to bearer;
sealed
signatures of authorized persons of the deposit-taker;
the tear-off
coupon (slip) which is detached from the blank form at the time of certificate
issuance and retained at the deposit-taker.
The deposit
certificate must contain:
the name
“deposit certificate”;
the series
and the number;
the date of
the deposit;
the amount of
the deposit in figures and in words in Belarusian rubles;
the rate of
the interest on the deposit and the intervals for its payment;
the date of
deposit repayment;
the
obligation of the deposit-taker to return the amount place in the deposit and to
pay the interest due;
the name and
location of the deposit-taker (location of its permanent executive body);
the name and
location (location of its permanent executive body) and the number of the
current bank account (for depositors, legal persons); surname, own name,
patronymic (if available), identity document details and, if available, the
number of the current bank account (for depositors, individual entrepreneurs)
if the certificate is a nominal security;
the
indication “to bearer” if the certificate is a security to bearer;
sealed
signatures of authorized persons of the deposit-taker;
the tear-off
coupon (slip) which is detached from the blank form at the time of certificate
issuance and retained at the deposit-taker.
Certificates are
issued in Belarusian rubles. The issue of
certificates in foreign currency is not allowed. The
certificate may not be used as a means of settlement or payment for goods
(works, services), except for the services provided by a bank or a non-bank
credit and financial organization.
The duration
of certificate circulation and rate of interest thereon are established by the
deposit-taker at the issuance of the certificate and may not be changed during
the period of certificate circulation.
Rights
evidenced by nominal savings and deposit certificates may be assigned in the
order established for the cession of a claim.
Rights
evidenced by a savings certificate may be transferred only to a natural person. Rights
evidenced by a deposit certificate may be transferred only to a legal person,
including a bank, and/or individual entrepreneur, with exception of the cases
stipulated by legislation of the Republic of Belarus.
Transactions
with savings and deposit certificates are concluded only in Belarusian rubles.
In case of an
early presentation of a savings certificate or deposit certificate for payment,
the deposit-taker pays the amount and interest stipulated for an at-call
deposit, unless a different rate of interest is stipulated by the terms and
conditions of the certificate. The condition
of a savings certificate limiting the right of its holder to receive the amount
of the deposit and the interest thereon at first demand is void.
If the
maturity date specified in the certificate is missed, such certificate is deemed,
starting from the maturity date specified therein, to be a demand document
under which the deposit-taker is obliged to pay the amount stated therein.
Procedures
for and terms of issue and circulation of savings and deposit certificates not
regulated by this Article are determined by the National Bank in agreement with
authorized central bodies of state administration carrying out the state
regulation of the securities market.
Chapter 22
Bank Account
Article 197. Current (settlement) bank account contract
Under a
current (settlement) bank account contract, one party (bank or non-bank credit
and financial organization) undertakes to open a current (settlement) account
for the other party (account holder) to keep its monetary means and credit the
account with monetary means received in favor of the account holder, and also
undertakes to carry out the account holder's instructions for transfer and
payment of corresponding monetary means from the account, whilst the account
holder empowers the bank or non-bank credit and financial organization to use
the temporarily idle resources available on his account with payment of
interest determined by legislation of the Republic of Belarus or the contract
and pay commission to the bank or non-bank credit and financial organization
for services rendered.
Article 198. Account holders under current (settlement) bank account
contract
Account
holders under a current (settlement) bank account contract may be natural and
legal persons.
Article 199. Order of the conclusion of current (settlement) bank
account contract
A bank or
non-bank credit and financial organization are obliged to conclude a current
(settlement) bank account contract with any natural or legal person requesting
that a current (settlement) bank account be opened, subject to the conditions
determined by the bank for opening such accounts.
After the
conclusion of a current (settlement) bank account contract, the bank or
non-bank credit and financial organization open, not later than on the
following working day, a current (settlement) bank account for the account
holder and assign an number to the account allowing to identify such account.
A
bank, non-bank credit and financial organization is entitled to refuse a
natural person or a legal person to open the current (settlement) bank account
in case of non-presentation of the documents required to identify these persons
in accordance with the legislation on the prevention of legalization of profits
received from crime and financing of terrorist activity.
Article 200. Procedure for disposal of monetary means on current
(settlement) bank account
A current
(settlement) bank account holder may dispose of monetary means on his account
either personally or through persons authorized by him.
The rights of
the current (settlement) bank account holder and his duly authorized persons
are confirmed by presenting to the bank or non-bank credit and financial
organization documents determined by the legislation of the Republic of
Belarus.
To
carry out by a bank, non-bank credit and financial institution of settlements
with monetary means being on the current (settlement) bank account of a legal
person or an individual entrepreneur, a card with
specimens of signatures and of the impression of the seal. The card with specimens of signatures
and of the impression of the seal include signatures of officials of the legal
person, individual entrepreneur, which have the right to sign documents for
making settlements, and also the impression of the seal of the legal person,
impression of the seal of the individual entrepreneur (if available). The authenticity of the signatures of
officials of the legal person, individual entrepreneur, included in the card
with specimens of signatures and of the impression of the seal is to be
witnessed in the order established by the legislation of the Republic of
Belarus.
When
the information to be included in the card with specimens of
signatures and of the impression of the seal, the
account holder is obliged to notify immediately the bank, non-bank credit and
financial organization and, within one-month period from the day of change of
the mentioned information shall formalize a new card with specimens of
signatures and of the impression of the seal in the
order established by the legislation of the Republic of Belarus. In case if the card with
specimens of signatures and of the impression of the seal, which needs to be changed, is not formalized within the
indicated, the bank or non-bank credit and financial institution shall refuse
to execute the documents of the account holder for conducting payments till the
formalization of a new card with specimens of signatures and of the
impression of the seal.
When
the right to sign documents for conducting settlements is granted temporarily,
and also when one of the persons that have the right to sign documents for
conducting settlements has temporarily replaced, for a period of not exceeding
two months, a new card with specimens of signatures and of the
impression of the seal needs not be formalized. In this case, the account
holder submits to the bank or non-bank credit and financial organization a
temporary card with specimens of signatures of
persons that temporarily have the right to sign documents for conducting
settlements, the authenticity which is certified by the account holder.
Disposal of
monetary means via systems of distance bank servicing, including via use of
electronic documents, stipulated by the current (settlement) bank account
contract, is carried out in the order established by the legislation of the
Republic of Belarus.
The bank or
non-bank credit and financial organization is not entitled, unless otherwise
stipulated by the President of the Republic of Belarus and this Code, to
determine and control the intended use of monetary means by the account holder,
as well as to establish other restrictions on the holder's rights to dispose of
his monetary means not stipulated for by legislation of the Republic of Belarus
or current (settlement) bank account contract.
Disposal of
monetary means with the use of electronic documents stipulated by the current
(settlement) bank account contract is carried out in the order established by
the legislation of the Republic of Belarus.
Article 201. Current (settlement) bank account operations
A bank and
non-bank credit and financial organization perform the following current
(settlement) bank account operations:
crediting the
bank account with the monetary means received in favor of the holder thereof;
remitting
monetary means from the bank account to other persons, including the bank
and/or non-bank credit and financial organization;
pay cash
monetary means from the account;
other
operations stipulated by legislation of the Republic of Belarus or current
(settlement) account contract.
Article 202. Time limits for performing current (settlement) bank
account operations
A bank or
non-bank credit and financial organization are obliged to perform operations
within one banking day, unless otherwise stipulated by legislation of the Republic
of Belarus or the current (settlement) bank account contract.
Article 203. Remuneration (fee) for services of bank or non-bank credit
and financial organization
A bank
account holder pay for services of a bank or non-bank credit and financial
organization on performing operations with monetary means on the holder's
account on the terms and conditions determined by the current (settlement) bank
account contract.
Remuneration
(fee) for rendered services are charged by the bank non-bank or credit and
financial organization on monetary means of the account holder monthly, unless
otherwise stipulated by the current (settlement) bank account contract.
Remuneration
(fee) is not charged:
for services
to state bodies, budget-financed organizations, and other legal persons and
individual entrepreneurs on settlement (current) bank accounts opened by them
for placing budgetary means;
for
performing payment instructions of a bank holder for remitting a tax, due
(duty), penalty fee and other obligatory payments to the national and local
budgets, state special budgetary and non-budgetary funds;
for the
execution of resolutions of a tax body, customs body, body of the Fund of
Social Protection of Population of the Ministry of Labour and Social Protection
of the Republic of Belarus on levying a tax, due (duty), penalty fee and other
obligatory payments to the national and local budgets, state special budgetary
and non-budgetary funds;
for
acceptance of monetary means from natural person when paying a tax, due (duty)
and other obligatory payments to the republican or local budgets, state
non-budget fund of social protection of the population of the Republic of
Belarus;
for
performing inter-bank settlements using budgetary means;
in other
cases stipulated by the legislative acts of the Republic of Belarus.
Article 204. Interest for using monetary means being on current
(settlement) bank account
For using
monetary means on a current (settlement) bank account, the bank or non-bank
credit and financial organization pay the account holder interest at the rate
and in the order determined by the current (settlement) bank account contract,
unless otherwise stipulated by legislation of the Republic of Belarus.
Unless otherwise
stipulated in the current (settlement) bank account contract, interest paid by
a bank or non-bank credit and financial organization for using monetary means
on the current (settlement) bank account are credited to the account upon
expiration of each month.
A bank or
non-bank credit and financial organization are entitled, after prior
notification the account holder, to change unilaterally the amount of interest
paid by them for using monetary means on the current (settlement) bank account
if it is stipulated by the current (settlement) bank account contract.
Article 205. Priority of debiting monetary means from current
(settlement) bank account
Where
monetary means available on a current (settlement) bank account are sufficient
for satisfying all monetary claims presented to the account holder, these means
are debited from the account in order of precedence.
Where
monetary means available on a current (settlement) bank account are
insufficient for satisfying all monetary claims presented to the account
holder, payment instructions received by the bank are settled in the order of
priority indicated by the account holder, recoverer, subject to requirements
provided by the legislative acts of the Republic of Belarus.
Article 206. Termination of obligations under current (settlement) bank
account contract
Obligations
under a current (settlement) bank account contract are subject to termination
at the demand of the account holder within a period established by agreement of
the parties.
A bank or
non-bank credit and financial organization is entitled to terminate obligations
under a current (settlement) bank account contract, having given the account
holder one-month warning, unless otherwise stipulated by the current
(settlement) bank account contract;
in
the absence of monetary means on the current (settlement) bank account for
three months from the date of the last remittance of monetary means from it;
in
the absence for one year of operations on the current (settlement) bank account
and monetary means on it if, in the absence for one year of operations, the
balance on the bank account is less than the minimum amount established by the
current (settlement) bank account contract;
when
the account holder does not fulfill the conditions of the current (settlement)
bank account contract;
when
the account holder does not present documents (information) necessary to
identify participants in the financial transactions in accordance with the legislation
on prevention of legalization of profits received from crime and financing of
terrorist activity;
in other
cases stipulated for by legislation of the Republic of Belarus and/or the
contract.
The
period of imposing arrest on monetary means on the current (settlement) bank
account, of suspension of operations on the current (settlement) bank account
is not included within the time period specified in part two of this Article.
Upon
the termination of obligations under the current (settlement) bank account, as
well as in other cases stipulated by this contract, the balance on the account
shall be handed out at the request of its holder not later than on the next
banking day after presentation of such a request, or remitted to another bank
account indicated by it in accordance with the payment instruction of the
account holder, unless otherwise provided by the legislation of the Republic of
Belarus.
Article 207. Indisputable debiting monetary means from payers’ accounts
When
levying execution on monetary means on accounts of the payer in a bank or
non-bank credit and financial organization, the debiting of these means from
the accounts is performed indisputably by payment order formalized on the basis
of execution inscriptions of notaries or other execution documents, decision
(executive order) of a state authorized body or authorized organization
(official) in cases provided by legislative acts of the Republic of Belarus.
Banks and
non-bank credit and financial organizations do not consider the payers’ objections
concerning indisputable debiting of monetary means from their accounts.
Article 2071. Special account contract, sub-account contract
Under a
special account contract, subaccount contract, one party (bank or non-bank
credit and financial organization) undertakes to open for the other party (the
account holder) a current (settlement) bank account with a special mode of
operation, set in the special account contract, sub-account contract on the
basis of the legislative act of the Republic of Belarus, according to which the
special account, sub-account is opened.
The relations
under a special account contract, sub-account contract, are covered by the
rules about the contract of the current (settlement) bank account, unless
otherwise provided by the rules of this Chapter or the act of legislation of
the Republic of Belarus in accordance with which the special account,
subaccount is opened.
Article 208. Temporary account contract
{0>По договору временного счета банк или небанковская кредитно-финансовая организация обязуются открыть банковский счет учредителю создаваемой коммерческой организации, уполномоченному другими учредителями, –
для формирования ими ее уставного фонда, созданной коммерческой организации –
для увеличения размера ее уставного фонда, а также в иных случаях, предусмотренных законодательными актами Республики Беларусь.<}0{>»Under
a temporary account contract, a bank or non-bank credit and financial
organization undertakes to open a bank account to a founder, authorized by other
founders, of a commercial organization being created for their setting up its
authorized fund; to a created commercial organization for an increase of the
amount of its authorized fund; and in other cases stipulated by the legislation
of the Republic of Belarus.
«<0}
{0>Статья 209. Договор корреспондентского счета<}97{>»Article 209. Correspondent account contract
«<0}
Under a
correspondent account contract, a correspondent bank or non-bank credit and
financial organization undertakes to open a correspondent account for a bank or
a non-bank credit and financial organization-(account holder) for safekeeping
its monetary means and crediting the account with monetary means received in
favor of the account holder, and also undertakes to carry out instructions
(orders) of the account holder concerning remittance and payment of appropriate
monetary means from the account in the order stipulated by legislation of the
Republic of Belarus.
A
correspondent account contract is concluded with a written consent of
executives of a bank, the head or a deputy head of a non-bank credit and
financial organization.
A bank or
non-bank credit and financial organization may not conclude a correspondent
account contract with non-resident banks that do not have permanently
functioning governing bodies in the territory of the states in which they are
registered and do not make part of a bank group, bank holding.
Article 210. Charity account contract
Under a
charity account contract, a bank or non-bank credit and financial organization
undertakes to open a bank account for a natural or legal person for collecting,
safekeeping, and using monetary means received as aid or donation for charity
purposes.
Article 211. [Excluded]
Article 212. [Excluded]
Chapter 23
Trust Management of Monetary means
Article 213. Contract of trust management of monetary means
Under a
contract of trust management of monetary means, the settlor transfers to a bank
or non-bank credit and financial organization (trustee) its monetary means to a
trust for a definite period of time, and the trustee undertakes to manage, for
a fee, the entrusted monetary means in the interests of the settlor or a person
designated by the latter (the beneficiary).
Article 214. Legal regulation of trust management of monetary means
Relations
arising out of or in connection with trust management of monetary means and not
regulated by this Code or other acts of banking legislation are regulated by
civil legislation on trust management of property.
Article 215. Form of contract of trust management of monetary means
A contract of
trust management of monetary means must be made in a written form. Non-observance
of the written form of the contract of trust management of monetary means
entails its invalidity.
Article 216. Material terms and conditions of contract of trust
management of monetary means
A contract of
trust management of monetary means must contain material terms and conditions
determined by civil legislation for the contract of trust management of
property.
Article 217. Subject matter of contract of trust management of monetary
means
Any monetary
means belonging to the settler on the right of ownership may be subject matter
of a contract of trust management of monetary means.
In cases
stipulated for by legislation of the Republic of Belarus, settlors of monetary
means may be persons other than owners thereof.
Monetary
means which are in economic management or operative administration may not be
transferred to trust management.
Article 218. Using monetary means transferred to trust management
Monetary
means transferred to a trust management may be used by trustees in accordance
with the contract of trust management of monetary means for:
placement on
deposit to obtain income;
acquisition
of securities (with the exception of the cases when the shares of open
joint-stock companies belong to the Republic of Belarus or its
administrative-territorial units) and for management thereof;
granting
interbank credits;
performance of
operations with securities, derivative securities, foreign currency valuables
and precious metals.
The trustee
has no right to use monetary means transferred by the settlor in the interests
not related to the trust management of the means.
Article 219. Procedure for transferring monetary means into trust
management
Monetary
means are transferred, in the order established by the National Bank, into
trust management:
by
settlors-legal persons, through remittance from the current (settlement)
account of the settlor to the fiduciary (trust) account;
settlors-natural
persons, through remittance from bank accounts or through payments in cash to
the fiduciary (trust) account.
Article 220. Forms of trust management of monetary means
The forms of
trust management of monetary means are:
full trust
management.;
trust
management by agreement;
trust
management by order.
Article 221. Full trust management of monetary means
Under full
trust management of monetary means, the trustee independently performs actions
with the settlor’s monetary means within instructions on management with
obligatory notification to the settler about every action taken, unless
otherwise stipulated by the contract.
Article 222. Trust management of monetary means by agreement
Under trust
management of monetary means by agreement, the trustee performs actions the
settlor’s monetary means subject to obligatory prior agreement of each action
with the settlor.
Article 223. Trust management of monetary means by order
Under trust
management of monetary means by order, the trustee performs actions with the
settlor’s monetary means only according to the settlor’s order.
Article 224. Protection of trustee's rights
The trustee's
rights to monetary means transferred to a trust management are protected in the
same way as the settlor’s rights to said monetary means, including protection
against wrongful acts of the settlor himself.
Article 225. Pooling of monetary means of several settlors by trustee
The trustee
has the right to pool monetary means of several settlors in order with the view
of using them in most effective way, subject to compliance with the terms and
conditions of each contract of trust management of monetary means.
Article 226. Accounting by trustee of monetary means and securities in
trust management
The trustee
is obliged to maintain separate accounting of his own monetary means and
securities, monetary means and securities of the settlor transferred to a trust
management and received (acquired) under such management by the trustor, as
well as separate accounting of monetary means and securities of different
settlors.
Recovery on
obligations related to trust management of monetary means transferred by one
settlor may not be performed out of monetary means of another settlor being in
trust management of the same trustee by.
Article 227. Transfer of management powers
Unless the
obligation of the trustee to fulfill his obligations personally follows from
the contract of trust management of monetary means, the trustee is entitled to
engage for their fulfillment only another bank or non-bank credit and financial
organization.
Article 228. Fiduciary (trust) account contract
A fiduciary
(trust) account for the settlor is opened on the basis of a fiduciary (trust)
account contract. At that, the trustee has the right to
open the fiduciary (trust) account in his own establishment.
A fiduciary
(trust) account contract is concluded only subject to the conclusion of a
contract of trust management of monetary means.
Procedures
for conclusion, execution, and termination of a fiduciary (trust) account
contract are established by this Code and normative legal acts of the National
Bank.
Article 229. Right of ownership of settlor of monetary means in
fiduciary (trust) account
Placement of
monetary means in a fiduciary (trust) account does not entail termination of
the settlor’s right of ownership of such means.
The settlor’s
right of ownership shall also apply to the monetary means and securities
received (acquired) under the trust management.
Article 230. Closing fiduciary (trust) account
A fiduciary
(trust) account is to be closed in case of:
termination
of obligations under a contract of trust management of monetary means;
absence of
monetary means in the account during one year;
in other cases
stipulated for by legislation of the Republic of Belarus or the contract.
SECTION VII
INTERMEDIARY BANKING OPERATIONS
Chapter 24
Settlements
Article 231. Settlements
Settlements
may be effected in cashless and cash form.
Settlements
in a cashless form mean settlements between natural and legal persons or with
their participation effected via a bank or non-bank credit and financial
organization, its affiliate (branch) in a cashless order.
Settlements
in a cashless form effected as bank remittance, letter of credit, and
collection.
The order of
effecting settlements with cash monetary means is regulated by legislation of
the Republic of Belarus.
The
provisions of this Chapter cover all settlements, including settlements in a
cashless form effected by non-bank credit and financial organizations.
Article 232. Effecting of settlements by way of bank remittance based
on payment instructions
Settlements
in a cashless form by way of a bank remittance are effected on the basis of
payment instructions by means of:
presentation
of settlement documents (remittance order, payment request, payment order);
using
payment instruments (cheque, bank payment card and other instruments) and means
of payment while carrying out respective operations;
presentation
and using other documents and instruments in the cases provided by the National
Bank.
Settlements
in a cashless form by way of a bank remittance may be effected also on the
basis of a contract between a bank and a customer containing data necessary for
effectuation of a bank remittance. A
contract may stipulate a possibility of transmission by the customer to the
bank of payment instructions necessary to carry out a bank transfer via
systems of distance bank servicing, subject to
ensuring the reliability and safety of information transmission.
Requirements
toward the form and content of payment instructions and toward the procedure
for performing operations while effecting settlements in a cashless form are
established by the National Bank.
The ground
for a banks’ effecting settlements in a cashless form is a contract (bank
deposit contract, bank current (settlement) account contract, correspondent
account contract or other contract) concluded between the bank and a customer
unless the duty of accepting for execution (acceptance) by the bank of payment
instructions is established by normative legal acts of the National Bank.
Obligations
arising out of a contract concluded by a bank and a customer are independent in
relation to obligations arising out of a contract concluded between the
customer and his counterparty (hereinafter – underlying contract) for the
execution of which the bank remittance is effected. Banks
are not bound by terms and conditions of the underlying contract and by a
volume of obligations of parties thereof, including when payment instructions
contain a reference to the underlying contract. Banks
have no right to control the fulfillment by the parties of their obligations
under the underlying contract unless otherwise stipulated by the President of
the Republic of Belarus, as well as to interfere in the relations of the
parties of the underlying contract.
A bank is
entitled to deny a customer to effect settlements in a cashless form in the
case:
of absence of
a contract concluded between the bank and the customer, except for the case
when the duty of the bank to accept for execution (acceptance) of payment
instructions is established by normative legal acts of the National Bank;
if the
contract concluded does not stipulate the effectuation of settlements in that
form;
of absence of
a sufficient sum of means in the payment currency on the account of the
customer unless there is a credit contract.
failure
to submit the documents required for the registration of a financial operation
subject to special control in accordance with the legislation on the prevention
of legalization of profits received from crime and financing of terrorist
activity.
A bank denies
to effect settlements in a cashless form in the case:
when
arrest is imposed on monetary means in the customer’s account and/or operations
on the account are suspended according to a respective decision of an
authorized state body (official) (in that case settlements in a cashless form
may be effected after the execution of the relevant resolutions of the
authorized state body (official)). The legislative acts of the Republic of
Belarus may establish the cases and the order of performing settlements in a
cashless form when the arrest is imposed on monetary means in the customer's
account and/or operations on the account are suspended;
when
execution (acceptance) of payment instructions constitute a violation of
legislation of the Republic of Belarus on the part of the bank;
when the form
and content of payment instructions do not comply with requirements established
by normative legal acts of the National Bank or the bank has founded reasons to
believe that payment instructions are not true.
After taking
decision on denial of the execution of settlements in a cashless form, the bank
is obliged to notify the customer about that not later the banking day
following the day of receipt of banking instructions unless otherwise
stipulated by legislation of the Republic of Belarus or contract.
Article 233. Form of payment instructions
Payment
instructions of the customer may be issued in a written form or using systems
of distance bank servicing, including in the form of an electronic document.
Payment
instruction of a customer – legal person, issued in a written form, shall carry
signatures (signature) of persons authorized to dispose of monetary means on
the account and the impression of the account holder's seal. Payment
instruction of a customer- legal person that contains such signatures and the
impression of the seal and that comply by other features with requirements of
legislation of the Republic of Belarus is deemed to be authentic.
Payment
instruction of a customer – natural person, issued in a written form, must
carry the signature of that person or a person authorized by the former to
dispose of monetary means on the account. Payment
instruction of a customer- natural person which contains such signature and
which complies by other features with requirements of the legislation of the
Republic of Belarus is deemed to be authentic. Payment
instruction of a customer – individual entrepreneur may also carry the
impression of his seal.
The
order of usage, storage of payment instructions issued by means of systems
of distance bank servicing, including in the form of
an electronic document, and also the order of formation and storage of payment
instructions on paper are established by the National Bank.
Article 234. Imposition of duty
on payment instructions execution on another bank
In the case when,
due to specifics of settlements in a cashless form or to other reasons, a bank
approached by a customer can not effect payment in full, this bank may redirect
partial execution of the customer’s instructions to another bank (correspondent
bank). With the consent of the servicing
bank, the customer is entitled either to determine a correspondent bank for
execution of payment instructions or give the right to choose such bank to the
servicing bank.
The bank is
liable for losses caused to the customer due to the non-execution of his
instruction on choice of a correspondent bank.
Article 235. Customer’s right to change and cancel payment instructions
Customers has
the right to change or cancel payment instructions issued to a bank before the
bank performs actual actions for their execution. Actual
actions for the execution of payment instructions mean:
making
accounting entries on corresponding accounts;
performing
other actions by the bank determined by legislation of the Republic of Belarus.
After performing
an actual action, the bank is entitled not to take any actions on changing or
cancelling payment instructions.
Article 236. Time limits for payment instructions execution
Payment
instructions are to be executed by the bank not later the banking day following
the day of the delivery thereof to the bank, unless otherwise stipulated by
this Code, other legislation of the Republic of Belarus or contract. Banks
are obliged to accept customers’ payment instructions the time of execution of
which will come at a future date, as well as payment instructions the execution
of which is subject to the occurrence of some circumstances (events) in the
future if the possibility of performing such operations is stipulated by the
rules established by banks.
Article 237. Bank liability for non-execution or undue execution of
payment instructions
undue
execution by a remitting bank of payment instructions of a customer (recoverer)
mean:
untimely
debiting monetary means from the account of the payer;
debiting
monetary means in an amount not corresponding to the amount indicated in
payment instructions of the customer (recoverer);
issuing, for
the execution of payment instructions of the customer (recoverer),
correspondent bank of a payment order not corresponding the payment
instructions of the customer (recoverer), correspondent bank which has entailed
the remittance (crediting) of monetary amounts in favor of an undue
beneficiary, correspondent bank;
other cases
of execution of payment instructions in the order not corresponding legislation
of the Republic of Belarus or contract.
undue
execution by a receiving bank of payment instructions of the correspondent bank
mean:
untimely
crediting monetary means to the beneficiary’s account;
crediting
monetary means to the beneficiary’s account in the amount not corresponding to
the payments instructions of the correspondent bank;
crediting
monetary means in favor of an undue beneficiary;
other cases
of execution of payment instructions in the order not corresponding legislation
of the Republic of Belarus or contract.
In the case
of undue execution of payment instructions, the bank is obliged to reimburse
the customer (recoverer), correspondent bank:
monetary
means debited groundlessly from their account;
monetary means
not credited to their account;
monetary
means remitted (credited) in favour of an incorrect beneficiary, correspondent
bank.
In the case
of non-execution or undue execution by a bank of payment instructions, the bank
is obliged to indemnify the customer (recoverer), correspondent bank for real
loss, including penalty fee (fine, penalty interest) recovered by
counterparties under the underlying contract, sanctions imposed by authorized
state bodies, as well as to pay interest for using borrowed monetary means in
the order established by civil legislation.
In
the case of non-execution or undue execution by a bank of payment instructions,
a customer (recoverer) is also entitled to claim indemnification for lost
profit if it is stipulated by a contract between the bank and the customer.
Article 238. Cases of exempting banks from liability for non-execution
or undue execution of payment instructions
Banks are not
liable for non-execution or undue execution of accepted payment instructions of
customers in cases of:
indication by
the customer of incorrect details of payment instructions;
loss of
payment instructions by communications organizations or distortion by them of
electronic messages;
break-downs
or crash of technical systems used by the bank occurred without fault of the
bank;
in other
cases provided by parts two and three of Article 242, part one of Article 146
and part two of Article 247 of this Code and other legislative acts of the
Republic of Belarus.
Article 239. Remittance order
Remittance order
is a payment instruction whereby one bank (remitting bank) remits, by order of
the customer (payer) for a fee, monetary means to another bank (receiving bank)
in favor of a person indicated in the order (beneficiary).
Where the
payer and the beneficiary recipient hold their accounts in the same bank or the
beneficiary has no account in the bank, and it is paid in cash monetary means
by the remitting bank, the remitting bank and the receiving bank constitute one
and the same person.
In effecting
settlements by remittance orders, the beneficiary may not demand the remitting
bank to effect payment.
Article 240. Execution of remittance order
Execution of
a remittance order by the remitting bank means issuing a remittance order to
the receiving bank concurrently with the provision of monetary means necessary
for the execution of this remittance order to the latter.
Execution of
a remittance order by the receiving bank means:
crediting
monetary means to the beneficiary's account. In
that case, after the execution of the remittance order, the receiving bank is
obliged to give the beneficiary documents confirming the crediting of monetary
means to his account;
paying out
cash monetary means to the beneficiary or using monetary means in accordance
with his instructions (when remitting (crediting) monetary means in favor of an
beneficiary that has no account in the bank).
Article 241. Effecting remittance of monetary means by remittance order
Remittance of
monetary means by a remittance order ends upon the acceptance of the remittance
order by the receiving bank.
Acceptance of
the payment order by the receiving bank is deemed to be the fulfillment by the
payer of his obligation on remittance of monetary means to the beneficiary.
From the
moment of acceptance by the receiving bank of the remittance order until the
monetary means are transferred to the beneficiary the receiving bank is
considered the debtor of the latter.
Execution of
the remittance order is deemed to be due even if the amount of the payment
order accepted by the receiving bank is less than the sum of the remittance
order of the payer as a result of collecting by the bank of fees for rendered
services.
Article 242. Conditions of acceptance of payer's remittance order by
remitting bank
When
accepting a remittance order, the remitting bank shall verify, within the
functions of exercising control imposed on it, the form of the remittance order
for compliance with requirements of the legislation of the Republic of Belarus
and, in the cases provided by the President of the Republic of Belarus, also
verify accompanying documents.
If the
remittance order contains insufficient data for execution of this remittance
order, the remitting bank returns it to the payer without execution.
The remitting
bank accepts the remittance order of the payer for execution only when there
are monetary means available on the payer's account, unless the contract
between the remitting bank and the payer stipulates a possibility of crediting
by the remitting bank the payer’s account (overdraft) or granting him credit in
another form.
Article 243. Acceptance of remittance order for execution by remitting
bank
A remittance
order is deemed to be accepted by the remitting bank in the case of:
sending a
notification by the remitting bank to the payer about the acceptance of his
remittance order;
issuing by
the remitting bank of a remittance order for execution of the received
remittance order;
receipt by
the remitting bank of the remittance order, if the payer and the remitting bank
have agreed that the remitting bank will execute the payer's remittance orders
upon receipt thereof;
debiting by
the remitting bank of the payer's accounts to effect the payment under the
remittance order;
crediting by the
remitting bank of the correspondent account of the receiving bank for the
purpose of executing the remittance order;
using the
monetary means received by the remitting bank in accordance with instructions
of the remittance order;
a failure to
send to the payer a notification about the refusal of acceptance of his
remittance order.
Article 244. Remitting bank’s refusal to accept remittance order
The remitting
bank is entitled to refuse the acceptance of a payer's remittance order in the
case:
of absence of
a sufficient amount of monetary means on the payer's account, if the execution
of the payment order must be carried out through debiting monetary means
available on the payer's account;
if the form
of the remittance order does not comply with the requirements of legislation of
the Republic of Belarus.
Notification
of refusal to accept of the remittance order must be sent not later than on the
banking day following the day of expiry of the time limit for the remittance
order execution.
Article 245. Acceptance of remittance order by receiving bank
A remittance
order is deemed to be accepted by the receiving bank in the case of:
sending of a
notification by the receiving bank to the remitting bank about the acceptance
of the remittance order;
receipt by
the receiving bank of the remittance order, if the remitting bank and the
receiving bank have agreed that the receiving bank will execute the remitting
bank’s remittance orders upon receipt thereof;
debiting by
the receiving bank of the correspondent account of the remitting bank to effect
payment under the remittance order;
crediting by
the receiving bank of the account of the beneficiary to execute the remittance
order or otherwise make monetary means available to the beneficiary;
using
monetary means by the receiving bank to repay the beneficiary’s debt to the
bank or using them in accordance with an execution document;
sending a
notification by the receiving bank to the payee about its right to dispose of
the received monetary means;
using the received
monetary means by the receiving bank in accordance with instructions of the
remittance order;
a failure to
send to the remitting bank a notification about the refusal of acceptance of
his remittance order.
Article 246. Receiving bank’s refusal to accept remittance order
The receiving
bank may refuse to accept the remitting bank's remittance order in the case:
of absence of
a sufficient amount of monetary means on the corresponding account of the
remitting bank if the remittance order must be executed by debiting monetary
means available on the remitting bank’s account;
of absence of
reimbursement for the sum of the remittance order on the part of the remitting
bank, coverable otherwise;
if the form
of the remittance order does not comply with the requirements of legislation of
the Republic of Belarus.
If the
legislation of the Republic of Belarus or a contract between the receiving bank
and the remitting bank provide for other cases.
Notification
of refusal to accept of the remittance order must be sent not later than on the
banking day following the day of expiry of the time limit for the remittance
order execution.
Article 247. Procedure for execution of remittance order by receiving
bank
Upon
acceptance of a remittance order, the receiving bank is obliged to transfer
monetary means at the disposal of the beneficiary or otherwise use the remitted
means in accordance with the remittance order.
Where data
contained in the remittance order is insufficient for due execution of this
order or there are discrepancies in the remittance order received, the
receiving bank is obliged to request further information from the remitting
bank not later than on the banking day following the day of receipt of the
remittance order. If there is no response from the
remitting bank or payer within three days, unless another time limit
established by the contract, the receiving bank is obliged to return received
monetary means to the remitting bank.
Article 248. Time limit for execution of remittance order by remitting
bank and receiving bank
The remitting
bank and the receiving are obliged to execute the remittance order, in case of
its acceptance, on the banking day when this order is received. Where
there is no sufficient time for executing the remittance order before the banking
day is over, it may be executed on the following banking day. The
remittance order may specify another time limit for the execution thereof.
In the case
of absence of a sufficient sum of monetary means on the account, and if the execution
of the remittance order must be carried out by debiting monetary means
available on the account, the remittance order may, provided that there is an
appropriate contract, be executed upon occurrence of monetary means on the
account within the time limits established by part one of this Article.
Article 249. Remittance order modification and revocation
The
remittance order may be modified or revoked by the payer or the remitting bank
provided that the notification about modification or revocation is received
prior to its actual execution by the remitting bank or the receiving bank.
Where the
notification about modification or revocation of a remittance order is received
prior to its actual execution, the remitting bank or the receiving bank
executes the payment order having regard to its modification.
Where the
notification about modification or revocation of a remittance order is received
prior to its actual execution, the remitting bank and the receiving bank have
no right to effect payment under this remittance order. In
that case the remitting bank and the receiving bank are obliged to return
received monetary means to the payer and the remitting bank respectively.
The payer and
the remitting bank, as well as the remitting bank and the receiving bank, may
agree upon that a remittance order being transmitted to the remitting bank or
the receiving bank may not be modified and/or revoked (irrevocable remittance
order).
Verification
of authenticity of a notification about remittance order modification or
revocation is carried out in the order established by the banking legislation
for verification of authenticity of a remittance order.
Death of a
natural person, termination of activities of an individual entrepreneur,
liquidation of a legal person (payer), or liquidation of the remitting bank
does not constitute grounds for revocation of a remittance order.
Article 250. Debiting monetary means credited to account due to
technical error
Where
monetary means are credited to the account of undue beneficiary as a result of
a technical error, the receiving bank is entitled to debit credited monetary
means from the account and return them to the remitting bank prior to carrying
out other expenditure operationson
this account.
The
technical error is understood to be an error committed by a bank when carrying
out an operation concerning the bank transfer by technical means, which entailed undue execution of payment
instructions of the client, remitting bank.
Procedure and
time limit for return of monetary means credited to the account of an undue
beneficiary as a result of a technical error are established by normative legal
acts of the National Bank.
Article 251. Intermediary bank (settlement center)
If a
remittance order is executed via a bank not being either a remitting bank or a
receiving bank (intermediary bank, settlement center), rules established by
this Code for the receiving bank are applied to the intermediary bank
(settlement center) that has received the remittance order, and rules
established by this Code for the remitting bank are applied to the intermediary
bank (settlement center) that has sent the remittance order.
Article 252. Payment demand
The
payment demand is a payment instruction containing the demand of a beneficiary
(recoverer) to the payer to pay a specified sum of monetary means through a
bank.
Rules for
effecting settlements in a cashless form by a payment demand are established by
normative legal acts of the National Bank.
Article 253. Payment order
The
payment order is a payment instruction formalized by the bank when carrying out
a transfer of monetary means in Belarusian rubles and foreign currency on its
own name and for its own account, on its own name but on behalf of and for the
account of a customer, or on behalf of and for the account of a customer. Cases when a bank
transfer is formalized by means of a payment order are established by the
National Bank and by the contract between the bank and the customer.
Article 254. Letter of credit
A letter of
credit is an undertaking by virtue of which a bank acting under the instruction
of a customer-applicant (issuing bank) is to make payment to a payee
(beneficiary) or is to accept and pay a bill of exchange drawn by the
beneficiary or to authorize another bank (executing bank) to effect such
payment, or to accept and pay the bill of exchange drawn by the beneficiary,
provided that all terms and conditions of the letter of credit are complied
with. A letter of credit may be executed by
payment against presentation, payment by installment, accepting, or discounting
a bill of exchange.
For advising
a letter of credit to a beneficiary, the issuing bank (executing bank) may
engage another bank (advising bank).
A letter of
credit is an independent undertaking in relation to obligations arising out of
a contract of sale or another contract that stipulates this form of
settlements. Banks are not bound by terms and
conditions of such contracts.
Article 255. Types of letter of credit
A letter of
credit may be irrevocable, confirmed, transferable, standby.
Article 256. [Excluded]
Article 257. Irrevocable letter of credit. Confirmed letter of credit
The
irrevocable letter of credit is understood to be a letter of credit that may be
amended or cancelled without the beneficiary’s consent.
A letter of
credit is irrevocable, unless otherwise expressly stated in the text thereof.
The issuing
bank must reimburse the executing bank which, upon presentation of documents
which appear on their face to be in compliance with the terms and conditions of
the letter of credit, made a payment, undertook to make a deferred payment,
accepted and paid or discounted a bill of exchange, as well as to accept such
documents.
At the
request of the issuing bank, the executing bank involved in a documentary
credit operation may confirm an irrevocable letter of credit (confirmed letter
of credit). Such confirmation means an
undertaking of the executing bank in addition to that of the issuing bank to
make payment under the letter of credit, accept and pay a bill of exchange or
to make other actions in accordance with the terms and conditions of the letter
of credit. The bank that confirmed the letter of
credit is the confirming bank.
An irrevocable
letter of credit confirmed by the executing bank may not be amended or
cancelled without the consent of the executing bank.
If drawings
by installments within given periods are stipulated by the letter of credit and
any installment is not drawn within the period allowed for that installment,
the letter of credit ceases to be effective both for that and any subsequent
installments, unless otherwise stipulated by the letter of credit.
Article 258. Transferable letter of credit
The
transferable letter of credit is understood to be a letter of credit under
which the issuing bank (executing bank) may, at the request of the beneficiary,
to give the consent to another person (another beneficiary) to execute the
letter of credit, in whole or in part, provided that it is allowed by the
obligation subject to presentation by that beneficiary of documents specified
in the letter of credit.
A letter of
credit may be transferred if it is designated by the issuing bank as
transferable. A transferable letter of credit may
be transferred only once, unless otherwise stipulated therein. Prohibition
to transfer a letter of credit does not mean a prohibition to assign the right
to claim the amount of monetary means due under it.
Article 259. Standby letter of credit
The standby
letter of credit is understood to be a letter of credit under which a bank
issues an independent undertaking to pay to the beneficiary a certain amount of
monetary means to the beneficiary upon his demand (application) or upon demand
accompanied by documents in conformity with the terms and conditions of the
letter of credit indicating that payment is due because of a default of the
applicant in the performance of an obligation, or because of occurrence of a
circumstance (event).
Provisions of
this Code relative to the bank guarantee apply to a stand-by letter of credit
unless otherwise stipulated by the terms and conditions of the standby letter
of credit.
Article 260. Relations between applicant and issuing bank
Instructions
of the applicant to the issuing bank on the basis of which a letter of credit
is opened may not provide for any obligations for the beneficiary or other
banks involved in the execution of the letter of credit and may not grant them
any rights.
The applicant
is obliged, concurrently with giving instructions to the issuing bank, make
available monetary means necessary for the execution of a letter of credit,
unless otherwise stipulated by agreement between the applicant and the issuing
bank. The fulfillment by the applicant of
this duty does not affect relations between the issuing bank and the
beneficiary (other banks involved in the execution of the letter of credit).
In the case
when in the course of the examination of documents under a letter of credit,
discrepancies with its terms and conditions have been detected, the executing
is entitled to refuse the documents to which effect is must give notice within
five banking days following the day of receipt of the documents by
telecommunications to the bank from which it received the documents or to the
beneficiary if the documents were received directly from the latter. In the case when discrepancies of
documents with the terms and conditions of the letter of credit have been
detected, the issuing bank is entitled to approach the applicant requesting
whether the latter agrees to pay such documents or refuses their payment.
Article 261. Relations between issuing bank (confirming bank) and
beneficiary
The issuing
bank (confirming bank) is obliged to effect payment to the beneficiary only
upon presentation of documents that appear on their face to be in compliance
with the terms and conditions of the letter of credit.
The issuing
bank (confirming bank) is obliged to examine the documents and determine
whether to accept or refuse them within five banking days following the day of
receipt of the documents. In case of
refusal to accept the documents, a notice stating their discrepancies with the
terms and conditions of the letter of credit must be immediately sent to the
party from which the documents were received.
Procedures
for examining whether document are in compliance with the terms and conditions
of a letter of credit are established by normative legal acts of the National
Bank.
Article 262. Legal status of executing bank
Unless the
letter of credit stipulates that it is executed by the issuing bank, it must
indicate the executing bank.
Unless the
executing bank is not being the confirming bank, the obligations to examine
documents and execute the letter of credit may be imposed on such bank only on
the basis of the instructions of the issuing bank.
Unless the
executing bank is not being the confirming bank, the beneficiary is entitled to
present demands arising out of the letter of credit only to the issuing bank.
Article 263. Legal status of advising bank
The advising
bank’s obligations under a letter of credit are limited toward checking the
apparent authenticity of the notice on opening (amending) the letter of credit
and forwarding it without delay to the party to which it is addressed.
When the
advising bank refuses to advise a letter of credit, it shall notify the party
from which the letter of credit was received to that effect not later than on
the banking day following the day of receipt of the letter of credit.
Article 264. Relations between beneficiary and applicant
A letter of
credit is independent on the existence, modification, or termination of
obligations between the beneficiary and the applicant.
If a letter
of credit is not executed, the beneficiary is entitled to approach the
applicant with corresponding demands, unless the beneficiary’s demands imply
otherwise.
Article 265. Termination of issuing bank’s obligations under letter of
credit
Obligations
of the issuing bank under a letter of credit terminate:
upon
execution of the letter of credit;
upon
non-presentation of documents in compliance with the terms and conditions of
the letter of credit within the period for which the letter of credit was
opened;
upon the
beneficiary's waiver of its rights under the letter of credit;
upon
revocation by the issuing bank of the letter of credit if it is determined as
revocable.
If the
issuing bank’s obligations under a letter of credit terminate on grounds
stipulated by indents three and four of part one of this Article, the issuing
bank is obliged to remit to the applicant the monetary means made available for
the execution of the letter of credit, not later than on the banking day
following the day of occurrence of the said grounds or of return of monetary
means from the executing bank.
Article 266. Domestic and international letters of credit
A letter of
credit is deemed to be domestic if residents act as the issuing bank and the
beneficiary. Specifics of executing domestic letters
of credit are determined by the National Bank.
A letter of
credit is deemed to be international if any of the parties involved in
settlements under the letter of credit is a non-resident. When
executing international letters of credit, the parties shall abide by norms of
treaties, international rules and practices in the sphere of letters of credit,
as well as by norms of law applicable to international letters of credit.
International
rules and practices may apply to domestic letters of credit in cases where a
reference is made thereto in the text of the letter of credit.
Unless
otherwise stipulated by the parties, the law of the issuing bank is considered
are applicable to international letters of credit of relations between the
issuing bank and the applicant, the issuing bank and the advising bank or the
executing bank, as well as between the advising bank or the executing bank and
the beneficiary.
Article 267. Concept and forms of collection
Collection
means the handling by banks of documents, in accordance with instructions of a
customer which results in delivery to a drawee of financial documents not
accompanied by commercial documents (clean collection) or of financial
documents accompanied by commercial documents or only commercial documents (documentary
collection) in order to obtain payment and/or acceptance of the payment or on
other terms and conditions.
Collection is
handled by a bank (remitting bank) upon instructions of a customer (principal)
or in its own behalf. In the
processing the collection alongside the remitting bank may be involved any
other bank (collecting bank). A bank making
presentation of documents to the drawee is the presenting bank.
Financial
documents mean bills of exchange, promissory notes, checks, or other similar
instruments used for obtaining the payment of money, drawn up in order to
fulfill monetary obligations.
Commercial
documents mean transport documents, invoices, documents of title and other
documents, not being financial documents
The
presenting bank is entitled to debit the drawee’s account subject to delivery
of documents with the consent of the drawee (by-acceptance form) or without the
consent of the drawee (without-acceptance form). The
conditions under with a without-acceptance form of the collection is allowed,
and different forms of acceptance (prior acceptance or subsequent acceptance)
are used, are determined by legislation of the Republic of Belarus, including
normative legal acts of the National Bank as well as by agreements between the
drawee and the presenting bank.
Certain types
of collection based on tax, administrative, and other relationships are
regulated by this Code, unless otherwise stipulated by special legislation of
the Republic of Belarus.
Specifics of
document circulation and certain types of collection are determined by legal
normative acts of the National Bank.
Article 268. Duties of remitting bank
The remitting
bank is obliged to take up from the principal collection order (application)
and documents specified in the collection order (application), examine accuracy
of the completion of the collections order (application) and availability of
documents specified in it. When the
collection order (application) are duly completed and documents specified in it
are available, the remitting bank forwards the documents received for the
collection to the presenting bank or to the drawee, if the remitting bank
exercises functions of the presenting bank, not later than on the banking day
following the day of their delivery or within other period specified in the
collection order (application).
The remitting
bank is not liable to the principal for the refusal of the drawee to pay
against financial documents. In case of
such refusal the remitting bank is obliged to notify without delay the
principal to this effect and send to it the returned financial documents.
Article 269. Obligations of presenting bank
Under the
by-acceptance form of the collection, the presenting bank is obliged to notify the
drawee of the principal’s requirements and/or present documents to the drawee
not later than on the banking day following the day of receipt of documents for
the collection on within other period of time specified in the received
instructions.
The presenting
bank is not liable to the principal for refusal of the drawee to accept
presented documents.
Under the
without-acceptance form of the collection, the presenting bank is obliged to
verify the apparent authenticity of presented financial documents and remit the
amount being recovered to the remitting bank on the day of delivery of the
documents or on the next banking day if they are delivered after the end of the
banking day.
If monetary
means on the payer's account are insufficient, the actions of the presenting
bank are determined by normative legal acts of the National Bank unless
otherwise established by legislative acts of the Republic of Belarus.
Article 270. Liability of presenting bank
If the
collection is delayed through the fault of the presenting bank, the principal
has the right, regardless of availability of contractual obligations, to bring
an action directly against the presenting bank.
Article 271. Specifics of international collection
Collection is
deemed to be international if at least one party involved in settlements under
the collection is non-resident.
Specifics of
international collection are determined by norms of treaties, international
rules and practices, as well as norms of law applicable to international
collection.
Unless otherwise
determined by the parties, applicable to international collection is:
law of the
remitting bank’s state - with respect to relations between the principal and
the remitting bank; and
law of the
presenting bank’s state – with respect to relations between the remitting bank,
drawee, other bank, and the presenting bank.
Article 272. Settlements by using checks
A check is a
security containing an unconditional order of the drawer to pay a sum of money
specified therein to the check holder.
A check must
be drawn only on a bank holding means at the disposal of the drawer, of which
the drawer is entitled to dispose by means of a check.
The
revocation of a check before the expiry of the time limit for its presentation
is not allowed.
Rules for
effecting settlements in a cashless form by means of checks are established by
normative legal acts of the National Bank.
Article 273. Bank payment card
A
bank payment card is a payment instrument that provides access to a bank
account, accounts for recording of bank deposits, credits of a natural or legal
person to obtain cash monetary means and carry out settlements in a non-cash
form, and also ensuring conducting of other operations in accordance with the
legislation of the Republic of Belarus.
Issuance
(emission) of bank payment cards, settlement and/or cash
services of natural and/or legal persons using bank
payment cards and/or their details (acquiring) held by the bank on the basis of
a license to carry out banking activities.
The
order of issuance into circulation (emission) of bank payment cards and
conducting acquiring is established by the National Bank.
Article 274. Electronic money
Electronic
money is electronically stored units of value issued into circulation in he
exchange for cash and non-cash monetary means and accepted as a means of
payment when carrying out settlements with both a person who issued into
circulation of these units of value and other legal and natural persons, and
also expressing the sum of obligation of such person on the return of monetary
means to any legal person or natural person upon presentation of these units of
value.
Issuance
(emission) of electronic money are carried out by a bank on the basis of the
license to carry out banking activities.
The
order of issuance (emission) of electronic money shall be established by the
National Bank.
Article 275. Legal regulation of settlements in cashless form
Procedure for
effecting settlements in a cashless form in the territory of the Republic of
Belarus are established by this Code and normative legal acts of the National
Bank.
Chapter 25
Foreign Currency Exchange Operations
Article 276. Foreign currency exchange operations
Foreign
currency exchange operations are:
operations involving
exchange of a foreign currency for the official monetary unit of the Republic
of Belarus and/or exchange of the official monetary unit of the Republic of
Belarus for a foreign currency at established exchange rates (foreign currency
trading);
operations
involving exchange of one foreign currency for another foreign currency at
established exchange rates (foreign currency conversion); and
other
operations determined by the National Bank.
Article 277. Procedures for performance of foreign currency operations
In the
territory of the Republic of Belarus foreign currency operations are carried
out through banks and non-bank credit and financial organizations that have
licenses to carry out banking activities conceding the right to perform such
operations.
Foreign
currency trading and/or conversion may be carried out at foreign currency
exchanges and at off-exchange currency market.
The National
Bank may establish limits of exchange rates at which foreign currency trading
and/or conversion of foreign currency is carried out in the domestic currency
market.
The procedure
for currency exchange operations is established by the National Bank.
Chapter 26
Bank Safekeeping. Temporary Use of Bank Strongbox
Article 278. Bank safekeeping contract
Under a bank
safekeeping contract, one party (bailee) undertakes, for a fee, to provide
safekeeping of documents and valuables delivered to it by another party
(bailor) and redeliver them to the bailor intact.
Under a bank
safekeeping contract, a bank and non-bank credit and financial organization may
act as a bailee.
Relationships
regarding safekeeping are regulated by this Code and civil legislation.
Article 279. Bank safekeeping items
The bailee
may take up from the bailor monetary means, securities, precious metals, precious
and semiprecious stones, and other valuables as well as documents (hereinafter
- bank safekeeping items) for safekeeping.
Article 280. Form of bank safekeeping contract
A bank
safekeeping contract shall be concluded in a written form. At
that, the simple written form of a bank safekeeping document is deemed to be
complied with if the acceptance of documents and valuables for safekeeping is
evidenced by the bailee through issuance to the bailor of a personal
safekeeping document. The presentation
of such document constitutes a ground for redelivery of bank safekeeping items
to the bailor.
Article 281. Types of bank safekeeping
Bank
safekeeping may be close, strongbox or open.
Article 282. Close safekeeping
Close bank
safekeeping is a type of bank safekeeping whereby safekeeping of bank
safekeeping items is effectuated by providing the bailor with an individual
bank strongbox (strongbox cell, separate room in a bank, non-bank credit and
financial organization) safeguarded by the bailee. The
bailee ensures for a bailor a possibility to place bank safekeeping items into
the individual strongbox and to take them out of the box without anyone’s
control, including the control of the bailee.
Article 283. Strongbox bank safekeeping
Strongbox
bank safekeeping is a type of bank safekeeping whereby safekeeping of bank
safekeeping items is effectuated by providing the bailor with an individual
bank strongbox (strongbox cell, separate room in a bank, non-bank credit and
financial organization) safeguarded by the bailee. The
bailee effectuates control over placement by the bailor of bank safekeeping
items into the individual strongbox and their withdrawal from the box.
Article 284. Open bank safekeeping
Open bank safekeeping
is a type of bank safekeeping whereby the bailee undertakes to safeguard bank
safekeeping items of the bailor and to return them in an unchanged state at the
expiry of the bank safekeeping contract.
Under open
bank safekeeping, bank safekeeping items of different bailors are kept
separately, without being sealed, with indication of the name of each bailor.
Article 285. Verification of bailor’s identity
In accordance
with a bank safekeeping contract, the identity of a bailor may be verified by
communicating a code or by presentation of an identity document or identity
card, or key, or other sign or a document.
Article 286. Providing individual bank strongbox to another person for
temporary use
Relationships
concerning the provision by banks and non-bank credit and financial
organizations of individual bank strongboxes (strongbox cells, separate rooms
in a bank, non-bank credit and financial organization) for temporary use of
another person without their liability for the preservation of content of the
strongboxes are regulated by dispositions of civil legislation on the lease
contract insofar it does not contradict the essence of such bank relationships.
Chapter 27
Collection and Carriage of Cash Monetary means, Payment Instructions, Precious
Metals and Precious Stones and Other Valuables
Article 287. Collection and carriage of cash monetary means, payment
instructions, precious metals and precious stones and other valuables
Collection of
cash monetary means, payment instructions, precious metals and precious stones
and other valuables means collecting such valuables from cash registers of
legal persons and individual entrepreneurs and their delivery to cash
departments of banks and non-bank credit and financial organizations, carried
out on the basis of a contract by collection services of banks and non-bank
credit and financial organizations.
Carriage of
cash monetary means, payment instructions, precious metals and precious stones
and other valuables means carriage of such valuables between banks and non
-bank credit and financial organizations, their separate and structural
divisions, as well as delivery of such valuables to clients of banks and
non-bank credit and financial organizations.
Banks and non
-bank credit and financial organizations which carry out collection and/or
carriage of cash monetary means, payment instructions, precious metals and
precious stones and other valuables have the right to:
acquire, in
the order established by normative legal acts of the President of the Republic
of Belarus and other legislative acts of the Republic of Belarus, civil and
service weapons and ammunition for it to be used respectively by employees of
their collection services and employees duties of which include carriage of
cash monetary means, payment instructions, precious metals and precious stones
and other valuables;
receive, in
the order stipulated by the President of the Republic of Belarus, into lease
some types and models of military weapons and ammunition for them to be used by
employees of collection services to fulfill duties imposed on them.
Handing
out weapons and ammunition to employees of collection service is performed on a
decision of heads of banks and non-bank credit and financial organizations
after the said employees have received relevant training and when there are no
obstacles for issuance to them of a permission to acquire civil weapons.
Employees
of collection service are provided with uniform, footwear, weapons equipment
and individual protection means in the order established by legislation of the
Republic of Belarus.
Article 288. Conditions and limits of the use of physical
force, application and use of weapons
Employees
of the collection service, when performing their duties on collection and
transportation of monetary means, payment instructions, precious metals and
precious stones, and other valuables, have the right to use physical force,
apply and use weapons, if otherwise it is impossible to fulfill their duties.
The
use of physical force and weapons must be preceded by a warning on the
intention to use them, evident and obvious for a person against whom they are
applied, giving sufficient time to execute legitimate demands, with the
exception of the cases when the delay in applying weapons or physical force
will create an immediate danger to life of citizens and can entail other
serious consequences.
In
all cases when the use of physical force and weapons cannot be avoided, the
employees of collection service are obliged to take all possible measures for
ensuring safety of citizens and seek to cause the least possible harm to their
health, honor, reputation and property, and also to take measures on immediate
medical and other assistance to the victims.
The
employees of the collective service are obliged to bring immediately every case
of the use of physical force and weapons to notice of the head of the
collection service or his deputy, and in case of causing harm to person’s
health – also immediately (not later than within a day) report the incident to
bodies of internal affairs according of the place where weapons were applied.
Employees
of the collection service are not liable for harm caused by them when applying
physical force, applying and/or using weapons, if they were applied and/or used
in cases provided by this Code and other legislative acts of the Republic of
Belarus, and there was no excess of measures necessary to apprehend persons
committing unlawful assaults, excess of limits of justifiable defense or
violation of conditions of legitimacy of extreme necessity.
Article 289. Application of physical force
Employees
of the collection service have the right, when fulfilling duties, to apply
physical force, including military style fight and self-defense techniques for
prevention and suppression of offences, apprehending persons who committed
them, in the case of counteraction of legitimate demands of employees of the
collection service, if the non-violent methods do not ensure the fulfillment of
duties.
Article 290. Applying and use of weapons
Employees
of the collection service, when fulfilling duties, have the
right to use weapons, as a last resort, for:
protection
of cash monetary means, payment instructions, precious metals and precious
stones and other valuables, which have been collected or are being transported,
from an assault perpetrated in order to seize them;
self-defense
against an assault that threatens the life or health of the employees of the
collection service, including an assault of a group or assault coupled with the
use of weapons or explosions, arsons and other dangerous methods, use of
vehicles, machinery or equipment against employees or service vehicles of the
collection service;
prevention
of seizing weapons of the employees of collection service;
freeing
of collection service employees or other persons who are responsible for
accounting, receiving, storing and handing out of cash monetary means, from
captivity or retention as hostages;
detention
of persons who offer armed resistance to the collection service employees or
refuse to fulfill their legitimate demands to surrender weapons, if it is
impossible to detain these persons, suppress their resistance or confiscate
weapons, in other ways or by other means.
The
collection service employees have the right to use weapons for:
making
a signal of alarm or help;
warning
about intention to use weapons;
neutralizing
an animal directly threatening the life or health of an employee of the
collection service and/or another citizen;
training
purposes.
The
use of weapons shall not endanger life and health of citizens.
The
collection service employees are prohibited to apply or use weapons:
when
there is a considerable concentration of people, and third persons can be
affected;
in
the direction towards flammable, explosive warehouses and storage facilities or
warehouses and storage facilities containing highly toxic substances;
towards
women, citizens with obvious signs of disability, minors when their age is
obvious or known, with the exception of the cases when the mentioned citizens
commit armed or group assault or other actions which threaten life or health of
the collective service employees and other persons.
|
President of the Republic of
Belarus
|
A. Lukashenko
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